JUDGMENT :- 1. These two appeals have been preferred against the order passed in W.P.No.49741 of 2006, dated 4.10.2007, filed by the Indian Institute of Technology, Madras. Since both the appeals are inter-connected and the parties arrayed are one and the same, they were heard together and disposed of by this common judgment. 2. The brief facts leading to filing of the writ petition as well as the writ appeals are as follows: - The Indian Institute of Technology (in short " the IIT") was created by the Institute of Technology Act, 1961. It has been set up to provide for instruction and research in various branches like Engineering and Technology, Sciences, etc.. It has also established residential hostels within the campus of the I.I.T. for providing accommodation to the students. According to the Management, the staff employed for discharging the functions in the hostel such as Cooks, Servers, Servants, Cleaners, etc., are not the employees of the I.I.T., and they are under the exclusive control and management of a body called "Hostel Management", which consists of the Chairman, Council of Wardens, three senior wardens out of 12 wardens in charge of the 12 Hostels, the Registrar of the Institute and elected students' representatives, Dean (students) and Asst. Registrar (Hostels). Hostel Management is the appointing authority of all the employees and it looks after the administration of the terms of employees and conditions of Service of Hostel employees. By a letter dated 27.9.1993 the Hostel Employees Association comprising of all the respondents in the writ petition, raised a dispute before the Assistant Commissioner of Labour (Conciliation)-III, containing four disputes, which includes the dispute relating to the grant of overtime wages. The Management denied the claim of the Employees in its reply dated 20.10.1993 and filed a statement before the Conciliation Officer on 22.10.1993. On the basis of the conciliation, a Conciliation Failure Report was sent by Proceedings dated 7.7.1995. The Government, on the basis of the report, refused to refer the issues for adjudication by letter dated 2.1.1996. Against the said order, the Hostel Employees Association preferred W.P.No.15215 of 1998 to quash the order passed by the Government dated 2.1.1996 and to direct the Government to refer the dispute. However, the said writ petition was withdrawn subsequently. The Government, on the basis of the report, refused to refer the issues for adjudication by letter dated 2.1.1996. Against the said order, the Hostel Employees Association preferred W.P.No.15215 of 1998 to quash the order passed by the Government dated 2.1.1996 and to direct the Government to refer the dispute. However, the said writ petition was withdrawn subsequently. Thereafter, the Hostel Employees Association raised a fresh dispute under Section 2(k) of the Industrial Disputes Act before the Assistant Commissioner of Labour by letter dated 8.9.1998. Among four issues, as a third issue, the Association had raised the issue of overtime wages. By G.O.(D)No.587 dated 13.7.2000, the Government of Tamil Nadu referred two disputes relating to closure of CSU Unit on 16.10.1998 and the entitlement of the employees to Earned Leave to the Industrial Tribunal. The Government, on the same day i.e., 13.7.2000, has also passed another order in G.O.(D)No.588 in which the only issue referred to was entitlement of Earned Leave. So far as the issues relating to eight hours work, overtime wages, are concerned, it was stated that the Association had not pressed. Thereafter, the dispute referred to by the Government was taken on the file of the Industrial Tribunal, Madras as I.D.No.99 of 2000. In the meantime, the Respondents in the writ petition filed Claim Petition Nos.274 to 430 of 1999 and 388 to 453 of 2002. The Labour Court framed the following issues for consideration: - "1) Whether the petitioner are employees of Indian Institute of Technology or employees of Hostel management? 2) Whether the working hours of the petitioners are flexible as alleged by the respondent? 3) Whether the petitioners are entitled for overtime wages as claimed by them? 4) Whether the claim is barred by limitation? 5) To what relief the petitioners are entitled to?" 3. The Tribunal answered the aforesaid issues in the following words :- "31) The petitioners are not employees of the I.I.T. but as fully controlled by the management of the respondent were entitled for overtime wages independently. 4) Whether the claim is barred by limitation? 5) To what relief the petitioners are entitled to?" 3. The Tribunal answered the aforesaid issues in the following words :- "31) The petitioners are not employees of the I.I.T. but as fully controlled by the management of the respondent were entitled for overtime wages independently. Hence, (1) the petitioners are entitled for overtime wages for 2½ hours in a day for the period of work during the relevant period from 1993 to 1999, (2) the working hours of the petitioners are not flexible as alleged by the respondent, (3) the petitioners are entitled for overtime wages for 2½ hours at Rs.7.95 and Rs.9.55 respectively and (4) the claim is not by limitation and these points are answered accordingly." 4. Aggrieved by the aforesaid order of the Tribunal, the I.I.T. preferred W.P.No.49741 of 2006 reiterating the same contentions raised before the Tribunal. So far as the contention relating to the employment status of the Respondents in the writ petition is concerned, the learned single Judge held that the documentary evidence would indicate that the wages of the hostel staff were paid by the I.I.T and, since the appointment, terms and conditions of the hostel staff, control, supervision and payment of wages are made by I.I.T., the contention of the I.I.T. that they are nothing to do with those employees cannot be countenanced. With regard to the contention relating to maintainability of the claim petitions before the Industrial Tribunal, the learned single Judge observed that the claim petitions are not maintainable on the grounds that they were made directly before the Tribunal under Section 33-C(2) of the Industrial Disputes Act without any prior adjudication and the order of the Government not referring the dispute to the Tribunal had remained unchallenged. On the aforesaid conclusions, ultimately, the learned single Judge set aside the order of the Industrial Tribunal. Aggrieved by the findings in paras 15 and 16 of the order relating to employment status of the staff, the I.I.T. preferred W.A.No.172 of 2008 and some of the employees had preferred W.A.No.935 of 2009 aggrieved by the other part of the order. 5. Aggrieved by the findings in paras 15 and 16 of the order relating to employment status of the staff, the I.I.T. preferred W.A.No.172 of 2008 and some of the employees had preferred W.A.No.935 of 2009 aggrieved by the other part of the order. 5. Learned Senior Counsel appearing for I.I.T., has mainly contended that when a specific stand has been taken to the effect that the employees are not the employees of the I.I.T., Madras, the Labour Court in Proceedings under Section 33-C(2) of the Industrial Disputes Act, ought not to have gone into this issue. In this context, he has also contended that a Division Bench of this Court in W.A.No.427 of 1979 by judgment dated 28.3.1985 had held that the Hostel Employees are not the employees of the Institute and the said judgment had become final. 6. Learned counsel appearing for the Employees submitted that when there is an existing right of payment of overtime allowance to the workmen under the Service Rules, the Claim Petitions filed under Section 33-C(2) of the Industrial Disputes Act are maintainable and the finding rendered by the learned single Judge in this regard is liable to be set aside. 7. We have heard the learned counsel appearing for the parties and perused the materials on record. 8. The points for consideration are: (1) Whether the employees of the Hostel Management are the employes of the Indian Institute of Technology? and (2) Whether the employees of the Hostel Management are entitled for overtime wages as claimed by them? 9. The Points :- For convenience, the parties are referred to as they are arrayed in W.A.No.172 of 2008. The Indian Institute of Technology was established by the Institute of Technology Act, 1961, to provide for instruction and research in various branches like Engineering and Technology, Sciences, etc.. The I.I.T. established residential hostels within the campus for providing accommodation to the students and such hostels were run by the Hostel Management with the help of employees in various capacities like cooks, servers, servants, cleaners, etc.. "The Hostel Management" means the governing body constituted by the Director, that manages the working and the affairs of the Hostels and the Central Supplies Unit. The said Hostel Management is the appointing authority of all the employees and it takes care of the administration and terms and conditions of service of hostel employees. "The Hostel Management" means the governing body constituted by the Director, that manages the working and the affairs of the Hostels and the Central Supplies Unit. The said Hostel Management is the appointing authority of all the employees and it takes care of the administration and terms and conditions of service of hostel employees. While so, the Hostel Employees Association, comprising of all the respondents, raised a dispute for the reliefs that the working hours of the employees should be specified, eight hours duty should be granted, over and above the eight hours work, overtime wages should be paid and no deduction should be made for the food taken by them. In the reply dated 20.10.1993, the Management denied the claims made by the employees and filed a statement to that effect before the Conciliation Officer, who after conciliation sent a failure report by Proceedings dated 7.7.1995 and the Government by G.O.(D)No.4, dated 2.1.1996 refused to refer the issues for adjudication. Against such order the employees had preferred W.P.No.15215 of 1998, however, the said writ petition was subsequently withdrawn. Thereafter, the Hostel Employees Association raised a fresh dispute before the Assistant Commissioner of Labour under Section 2(k) of the I.D. Act reiterating eight hours duty, overtime wages and a new issue that two days leave, earned leave, quarters, appointment on compassionate grounds, food, promotion, etc.. However, except the issue relating to earned leave, other issues were not pressed by the Association and the Government by order dated 13.7.2000 has referred the only issue relating to entitlement of earned leave. In the meantime, the respondents preferred Claim Petition Nos.274 to 430 of 1999 and 388 to 453 of 2002 claiming overtime wages for the period from January 1993 with interest at 18% per annum. The Labour Court on the issue whether the respondents are employees of the IIT., held that though they are not employees of the I.I.T., they are fully controlled by the management of the I.I.T., and, therefore, they are entitled for overtime wages. However, the Labour Court has not given its definite findings on the question relating to the first point raised by it, i.e., he whether the respondents are employees of I.I.T. or not ? 10. While considering the aforesaid question the learned single Judge observed as follows :- "15. . . . However, the Labour Court has not given its definite findings on the question relating to the first point raised by it, i.e., he whether the respondents are employees of I.I.T. or not ? 10. While considering the aforesaid question the learned single Judge observed as follows :- "15. . . . It is not in controversy that all these respondents 2 to 176 were employed in the Hostel. According to the learned Counsel for the petitioner, they are all employees under the Hostel Management, and the I.I.T. has nothing to do with the same. As rightly pointed out by the learned Counsel for the respondents 2 to 176, the evidence recorded by the Labour Court, would indicate that the contentions put forth by the petitioner's side that they are the employees of the Hostel Management cannot be accepted. There is evidence under Ex.P36 to show that the supervision of the Hostel Management was done by a body constituted by the Director of the I.I.T., and further, payment of wages have been made under Exs.P47 and P48 series, to the employees, who are the respondents 2 to 176 herein, directly by the I.I.T. Thus, the documentary evidence would indicate that the wages of the hostel staff were also paid by the I.I.T. Further, in the instant case, as could be seen from the available materials and as pointed out by the Labour Court, the appointment, terms and conditions of the hostel staff, control, supervision and payment of wages are made by the I.I.T. Hence, the first contention put forth by the petitioner's side that they have nothing to do with those employees cannot be countenanced." 11. Learned single Judge for coming to such a conclusion has mainly relied on Ex.P-36, the Terms of Employment and Conditions of Service of the Employees of the Hostel Management, I.I.T., Madras and Exs.P-47 & P-48, the pay slips and payment vouchers. 12. Chapter 3 of the Terms and Conditions deals with definitions. Definition (f) defines Hostel Management means the governing body, constituted by the Director, that manages the working and the affairs of the Hostels and the Central Supplies Unit. Appointing Authority is defined in clause (g), which means the Hostel Management. Chapter 4 elaborately deals with Hostel Management. 12. Chapter 3 of the Terms and Conditions deals with definitions. Definition (f) defines Hostel Management means the governing body, constituted by the Director, that manages the working and the affairs of the Hostels and the Central Supplies Unit. Appointing Authority is defined in clause (g), which means the Hostel Management. Chapter 4 elaborately deals with Hostel Management. As per which the Hostel Management is the appointing authority of all the employees and shall be responsible for policy formulation, co-ordination and review of all matters relating to the management of all Hostels and the CSU, which shall meet as often as necessary or at least once in three months. Among the matters within the jurisdiction of the Hostel Management, Recruitment and placement of employees, Pay and allowances, Discipline of employees, Promotion /Review of employees also find place. As per the terms and conditions, the appointing authority has the power to terminate the services of any employee without notice and without any cause assigned during the period of probation and in case of any other employee by giving three months' notice or on payment of three months' salary in lieu thereof. 13. A reading of the aforesaid clauses of the Terms of Employment and Conditions of service of the employees of the Hostel Management would abundantly make it clear that the terms and conditions of the hostel staff, control, supervision and payment of wages are made by the IIT and it has control over the staff of the Hostel Management and, therefore, as rightly held by the learned single Judge it cannot be said that the employees of the Hostel Management are not the employees of the I.I.T., and, the finding of the learned single Judge in this regard is to be confirmed. Moreover, a perusal of the pay bills and the pay slips would show that in the top of the Bill / Slip it is shown as "INDIAN INSTITUTE O TECHNOLOGY – MADRAS", which substantiate the claim of the employees. The Labour Court though while granting the overtime allowance had observed that the employees of the Hostel Management are not the employees of the I.I.T., it had not given any categorical finding with regard to the status of the employees. The Labour Court though while granting the overtime allowance had observed that the employees of the Hostel Management are not the employees of the I.I.T., it had not given any categorical finding with regard to the status of the employees. On the other hand, on the available materials on record, it came to the conclusion that as the employees of the Hostel Management they had worked more than the stipulated time. It is not in dispute that the employees of the Hostel Management had enjoyed all the benefits on a par with the employees of the I.I.T.. 14. The main contention raised on behalf of the appellant is that a Division Bench of the High Court has taken a view in W.A.No.427 of 1979 that the Hostel Employees are not the employees of the I.I.T., and the said judgment had become final. The allied contention is that the question regarding the status of the employees as to whether they are employees or not, cannot be decided in Proceedings under Section 33-C(2) of the Industrial Disputes Act and, therefore, the decision of the learned single Judge should be interfered with. In support of such contention, the learned Senior Counsel relied on several decisions of the Supreme Court. 15. Either party has produced the copy of the judgment in the earlier W.A.No.427 of 1979 to substantiate their claim and, therefore, we are not in a position to express our opinion on the said decision. Moreover, from the materials on record it is seen that the I.I.T. has every control over the employees of the Hostel Management and, therefore, they could not be denied the status as employees of the I.I.T.. 16. The next contention relates to overtime allowance. The main objection raised by the I.I.T. for grant of overtime allowance is that the employees of the Hostel Management are not the employees of the I.I.T. and, therefore, they are not entitled for overtime allowance. The allied contentions are to the effect that to grant overtime allowance under Section 33-C(2), there should be a prior adjudication or pre-existing right. The main objection raised by the I.I.T. for grant of overtime allowance is that the employees of the Hostel Management are not the employees of the I.I.T. and, therefore, they are not entitled for overtime allowance. The allied contentions are to the effect that to grant overtime allowance under Section 33-C(2), there should be a prior adjudication or pre-existing right. In support of such contention, the learned Senior Counsel has placed strong reliance on a decision of the Supreme Court in Union of India & Another v. Kankuben (Dead) by LRs & others reported in 2006(3) SCALE 296 and a Division Bench decision of this Court in Special Officer, Vellore Co-operative Sugar Mills, Vellore v. Presiding Officer, Labour Court, Vellore and others. 17. On the contra, the learned counsel appearing for the respondents / employees in support of their contention that they are eligible to claim overtime wages independently as employees of the hostel by virtue of Ex.P.36, Ex.P37 and Ex.R.14 relied on various decisions of the Supreme Court including the decisions in East India Coal Company v. Rameswar and others ( AIR 1968 SC 218 ), Central England Water Transport Corporation Ltd., v. Workmen ( AIR 1974 SC 1604 ), Uttar Pradesh Electric Supply Company Ltd. v. Sukla ( 1969 (2) LLJ 728 ). 18. Before going into the decisions relied on, it would be relevant to extract Section 33-C(2) of the Industrial Disputes Act, 1947, which is as follows :- "33-C Recovery of money due from an employer – (1) . . . (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 compute, 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 within a period not exceeding three months." 19. It is true that a proceeding under Section 33-C(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 the 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. However, when the right to the money which is sought to be calculated or to the benefit which is sought to be computed is an existing one, that is to say, already adjudicated upon or provided for and arise in the course of and in relation to the relationship between the industrial workman and his employer, the provisions of 33-C(2) can be invoked. 20. In the present case, the Terms of Employment and Conditions of Service of the Employees provides for overtime allowance. It is not the case of the Management that the Terms of Employment does not provide for payment of overtime allowance. In fact Chapter 7 of the Terms of Employment and Conditions of service of the Employees relates to terms and conditions and clause (q), which provides for payment of overtime allowance, is as follows: - "q) All employees shall work for 48 hours per week, not exceeding 10 hrs/day. However, due to the exigencies of work if an employee is required to put in more than 48 hours of work per week, he/she shall be entitled for payment of Overtime Allowance as per rules." 21. Coming to the contentions raised with regard to overtime allowance, as we have already held that the respondents are the employees of the I.I.T., the I.I.T. cannot refuse the claim of overtime allowance to the respondents. Since the terms and conditions provide for payment of overtime allowance, which has already been extracted, the I.I.T. cannot further contend that the claim application filed under Section 33-C(2) of the Industrial Disputes Act is not maintainable before the Labour Court as there was no prior adjudication. 21. The issue to be now gone into is whether the employees had worked beyond the prescribed hours. 21. The issue to be now gone into is whether the employees had worked beyond the prescribed hours. In this regard, the Labour Court on consideration of the materials available on record has observed as follows: - "13) The evidence of P.W.1 to P.W.8 as well as R.W.1 and R.W.2 would establish the cooks come to hostel by 5.00 A.M. and the other employees report for duty at 6.00 A.M.. As already pointed out that the working hours of the petitioners are flexible according to the respondent and where as it is continuous according to the petitioners. It is not the case of the respondent that the petitioners were provided with accommodation in the I.I.T. premises itself. It is evident from the evidence of petitioners' side witnesses that they come from various places outside the I.I.T. Campus and after reporting for duty they remained in the campus till 8.30 P.M. and only after finishing their work leave the hostel premises. Nothing on record to show that the petitioners were provided with rest places in the hostel during leisure hours. When the respondent has not placed any material to establish that accommodation has been provided for the employees to take rest apart from the working hours. It is for the management to prove regarding the flexibility in working hours. Ex.P.36 and P.37 only speak about the mess timings and not the working hours of the petitioners. Though it is alleged by the petitioners that they are employed from 6.00 A.M. to 8.30 P.M. continuously without any break, this fact has not been clearly established by the petitioners. However, the evidence on record only establishes that the petitioners were engaged in preparation of food, cleaning, grinding and other works apart from the service of food during mess timings. This will certainly establish that the petitioners have worked for about 5 hours apart from the mess timings." 22. We have not been persuaded by the appellant to take a different view in this aspect to come to a conclusion that the respondents had not worked beyond the permitted hours. Moreover, the materials on record would confirm the finding of the Labour Court that the respondents / employees had worked period the working hours meant for them. The Labour Court before granting overtime allowance, it has considered all the decisions cited by either side and have gone through all the materials on record. Moreover, the materials on record would confirm the finding of the Labour Court that the respondents / employees had worked period the working hours meant for them. The Labour Court before granting overtime allowance, it has considered all the decisions cited by either side and have gone through all the materials on record. The finding of the Labour Court in this regard is a factual finding and we do not see any reason to interfere with such a finding, which is hereby confirmed. 23. In (2001)1 SCC 73 (State Bank of India v. Ram Chandra Dubey), the Apex Court has observed as follows :- "8. The principles enunciated in the decisions referred by either side can be summed up as follows: 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 which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C (2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages." 24. The Apex Court has clarified in the aforesaid decision that the benefit sought to be enforced under Section 33-C(2) of the Act should necessarily be a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not.In the present case, the right accrued in favour of the employees flows from the terms and conditions of the employees, which admittedly provides payment of overtime allowance when the employee is required to put in more than 48 hours of work per week. When there was no evidence to dispute the fact that the employees have worked more than 48 hours, a right crops up in favour of the employees to hold that they are entitled for overtime allowance. 25. The decision relied on by the learned Senior Counsel in Krishnan D. And another v. Special Officer, Vellore Co-opeative Sugar Mill, the service rules under which the employees were appointed do not provide for overtime wages. In such circumstances, the Supreme Court held that the claim application under Section 33-C(2) is not maintainable. In the present case, admittedly, clause (q) of the Terms and Conditions provide for payment of overtime allowance and, when a specific rule is provided for, it cannot be said that the claim application filed under Section 33-C(2) for grant of overtime allowance would not be maintainable. In the present case, admittedly, clause (q) of the Terms and Conditions provide for payment of overtime allowance and, when a specific rule is provided for, it cannot be said that the claim application filed under Section 33-C(2) for grant of overtime allowance would not be maintainable. The other decisions relied on by the learned Senior Counsel is also distinguishable for the aforesaid reason. 26. The learned single Judge once came to a conclusion that the respondents are the employees of the I.I.T., has failed to consider their right provided for in the terms and conditions of service for granting overtime allowance. The learned single Judge was misguided by the fact that on two occasions though conciliation was made, failure reports were submitted to the Government and the Government had also refused to refer the matter before the Labour Court for adjudication. The learned single Judge was also misguided by the fact that the employees' Association had not pressed the claim of overtime allowance. Since the evidence before the Labour Court was not properly appreciated by the learned single Judge, the conclusion of the learned single Judge in respect of overtime allowance is set aside. 27. For the reasons stated above, we hold that the respondents are the employees of the Indian Institute of Technology, Madras, and they are entitled for overtime allowance as has been held by the Labour Court. 28. In the result, W.A.No.172 of 2008 preferred by the Indian Institute of Technology is dismissed and W.A.No.935 of 2009 preferred by the employees is allowed. The award of the Labour Court and the order of the learned single Judge is modified to the extent indicated above. No costs.