JUDGMENT : K.M. THAKER, J. 1. In this petition, the petitioner municipality has challenged the order dated 12.1.2011 passed by the learned Labour Court at Bhavnagar in Recovery Application No. 8 of 1995 whereby the learned Labour Court allowed the recovery application filed by the respondent under section 33C(2) of the Industrial Disputes Act, 1947 (‘the Act’ for short) to recover his claim for alleged overtime during the period from August 1988 to March 1995 and the learned Labour Court, by allowing the said recovery application, directed the petitioner municipality to pay Rs. 5,01,122.56. 2. So far as the facts involved in present case are concerned, it has emerged from the submissions by learned advocate for the petitioner municipality and the learned advocate for respondent and the record of the petition that the respondent filed an application by invoking section 33C(2) of the Act and he put forward his claim for Rs. 5,01,122.56 on the ground that during the period from August 1988 to March 1995, he had worked overtime for 7 hours every day and that, therefore, he is entitled for overtime wages for 11,030 hours. The claimant-respondent claimed that rate of wages according to his previous salary was 22.71 per hour and since he had worked overtime for 11,030 hours, he was entitled for wages at double rate for 11,030 hours. He claimed that double amount of wages for 11,030 hours he was entitled to receive Rs. 5,01,122.56 towards overtime work. With such claim, the respondent herein filed recovery application which was registered as Recovery Application No. 81 of 1995. 3. The said application was opposed by the petitioner municipality who filed its reply at Exh.4. In its reply, the petitioner municipality, while denying the allegation and claim of the claimant, mentioned that the claimant was working as Internal Auditor and that for some time he was also assigned the duty and work of octroi checking which was to be performed by the claimant during his regular office hours and that the claimant was not required to or supposed to and was not made to work overtime for a single day for a single hour and the duty of octroi checking was done by the petitioner during his regular office hours and not before or after the regular office hours and that, therefore, the claim put forward by the claimant was unjustified and unsustainable. 3.1 The opponent municipality also opposed the claim of the recovery application by the claimant on the ground that the provision under Gujarat Civil Services (General Conditions of Services) Rules, 2002 (‘GCSR’ for short) are applicable to the municipality and that, therefore, the claimant would otherwise also not be entitled for any wages for so-called ‘overtime’ work. It was claimed that since service conditions of the claimant are governed by the provisions under GCSR, the claim of overtime is not maintainable and the rules/ provisions concerning overtime either under Bombay Shops Establishment Act or any other provisions would not be applicable. 3.2 The opponent municipality opposed the claim on the ground that even otherwise, the claimant was never required to work for more than 8 hours on any day during the period in question or at any other time and therefore also the claim should not be entertained. 3.3 The claim was also opposed on the ground that if the claimant’s pay scale was lower or less than the salary/pay scale of Octroi Inspector, then the claimant would have been entitled to claim 10% charge allowance, as per the rules, however, since salary/pay scale of the claimant was not lower or less than that of Octroi Inspector and since the cadre in which the petitioner was employed and the cadre of Octroi Inspector are in same pay scale, the respondent would not be entitled even for the charge allowance and therefore also the claim should not be entertained. 3.4 On such grounds, the petitioner municipality opposed the recovery application filed by the claimant, i.e. present respondent. 3.5 During the proceeding before the learned Labour Court, the claimant placed on record the office order assigning him duty of octroi checking, he also placed on record resolution passed by the opponent municipality. He also placed on record notice published by the opponent in newspaper and certain other documents on the record of the recovery application. The evidence of the claimant was recorded by the learned Labour Court. The opponent municipality placed on record the order whereby the instructions assigning work/ duty of octroi checking was discontinued, the municipality also placed on record an award passed by the learned Industrial Tribunal in Reference No. 13 of 1996 and the municipality examined one Mr. S.K. Katara as its witness. The opponent municipality placed on record the order whereby the instructions assigning work/ duty of octroi checking was discontinued, the municipality also placed on record an award passed by the learned Industrial Tribunal in Reference No. 13 of 1996 and the municipality examined one Mr. S.K. Katara as its witness. 3.6 After the stage of evidence was closed, the learned Labour Court had heard the submissions by learned advocates for the claimant and the opponent municipality and after considering the material on record and rival contentions, passed the order dated 12.1.2011 with the aforesaid direction which is challenged in present petition. 4. Mr. Joshi, learned advocate for the petitioner municipality assailed the order and submitted that the learned Labour Court has passed the impugned order by ignoring legal aspects involved in the matter and the impugned order is based on presumptions and surmises and without any relevant evidence available on record. He submitted that the learned Labour Court failed to appreciate that since the service conditions of the claimant were governed by GCSR, the claim for overtime would not be maintainable. He also submitted that even otherwise the claim for overtime cannot be decided in application under section 33C(2). Learned advocate for the petitioner municipality submitted that even otherwise there was no evidence to establish that the claimant had worked overtime to the extent of 11,030 hours during August 1988 to March 1995. He also claimed that there was no evidence on record to support the allegation that the claimant worked overtime for 7 hours every day during August 1988 to March 1995 and that, therefore, in absence of cogent and conclusive evidence, such claim should not have been granted. Learned advocate for the petitioner municipality also challenged the order on the ground that the learned Labour Court failed to appreciate that the claim was hit by delay and therefore should not have been entertained. 5. Mr. Pandya, learned advocate for the claimant, i.e. respondent submitted that the claim raised by the respondent was not hit by delay inasmuch as the respondent had worked overtime until March 1995 and the recovery application was filed in March 1995 and that, therefore, the contention on the ground of delay is unjustified and untenable. 5. Mr. Pandya, learned advocate for the claimant, i.e. respondent submitted that the claim raised by the respondent was not hit by delay inasmuch as the respondent had worked overtime until March 1995 and the recovery application was filed in March 1995 and that, therefore, the contention on the ground of delay is unjustified and untenable. Learned advocate for the claimant also submitted that there is no dispute about the fact that the petitioner was assigned additional duty of octroi checking and that the said duty obliged the claimant to work overtime and that, therefore, the claim cannot be said to be unreasonable or unjust. Learned advocate for the claimant submitted that since the claimant had to perform duty as Internal Auditor and had also to perform duty of octroi checking, the claimant is entitled for overtime wages which should be paid at double rate for overtime work. On such contention, learned advocate for the claimant supported and justified the order passed by the learned Labour Court. Learned advocate for the claimant, however, could not refute the contention of the municipality that the claimant’s service conditions were governed by GCSR and the claim for overtime work is not maintainable in recovery application. 6. I have considered the submissions by learned advocates for the petitioner and the respondent and I have also examined the impugned order dated 12.1.2011 and other material on record. 7. It is not in dispute that the respondent was appointed and was working as Internal Auditor. It is also not in dispute that for some time, i.e. from August 1988 to March 1995, the respondent was assigned duty and function of octroi checking. According to the respondent, the said assignment was additional duty/charge, for which he had to work overtime and therefore, he is entitled for payment for overtime work. 8. As mentioned earlier, the claimant alleged before the learned Labour Court that he worked for additional 7 hours every day during August 1988 to March 1995. 9. Whereas the petitioner claimed and maintained that the said work was also to be done and was actually done during regular office hours and the respondent was never required to put extra hours or overtime. 10. 9. Whereas the petitioner claimed and maintained that the said work was also to be done and was actually done during regular office hours and the respondent was never required to put extra hours or overtime. 10. It is pertinent to note that any cogent and satisfactory evidence to support the claim that the claimant used to work for additional 7 hours every day during the span of years, i.e. from August 1988 to March/April 1995 is not placed on record by the claimant. 10.1 Neither any written instructions directing the claimant to work after office hours were placed on record nor any cogent and corroborating evidence was placed on record to support and justify the claim and the allegation that he used to actually work for additional 7 hours, before or after regular office/duty hours every day during the span of 7 years, i.e. from August 1988 to March 1995. 10.2 Despite the fact that any written instructions asking the petitioner to work after office hours or before office hours, i.e. beyond his regular duty hours, was not placed on record before the learned Labour Court and despite the fact that the claimant did not examine his superior officer or his colleague or any other member of the staff to establish that he used to work for additional seven hours, before or after regular duty/office hours i.e. beyond regular duty hours every day during the said span of 7 years and despite the fact that any other direct or even indirect evidence except bald and unsubstantiated allegations by the claimant was not available on record of the recovery application, the learned Labour Court has without any base or justification, observed in the impugned order that the claimant proved that he had worked overtime. 10.3 The learned Labour Court mechanically i.e. without support of any cogent and corroborating evidence accepted and believed the respondent's unsubstantiated and bald claim that he used to perform his duties as internal auditor during 11.00 a.m. to 6.00 p.m. i.e. regular duty/office hours and thereafter he used to perform duty of audit checking during night time. 11. 10.3 The learned Labour Court mechanically i.e. without support of any cogent and corroborating evidence accepted and believed the respondent's unsubstantiated and bald claim that he used to perform his duties as internal auditor during 11.00 a.m. to 6.00 p.m. i.e. regular duty/office hours and thereafter he used to perform duty of audit checking during night time. 11. In paragraph No. 6 of the order, the learned Labour Court has observed that on the basis of material on record, it was proved that the claimant had worked overtime during night from August 1998 to March 1995, however, the learned Labour Court has not discussed and has not dealt with any evidence or has not dealt with the nature of the evidence or material available on record. All that is mentioned in paragraph No. 6 of the award is that vide document at Exh.67, the claimant had asked for payment of overtime wages and that thereafter, the municipality had discontinued assignment of duty to the petitioner. 12. On reading the award and from the material on record, it comes out that there was no cogent and conclusive evidence before the learned Labour Court which would establish that the claimant had worked beyond office/duty hours and he had put in overtime work for 7 hours every day during the period between August 1988 to March 1995. Only on the premise that the additional charge was assigned to the claimant, the Court could not have, in absence of any evidence of actual overtime work either before or after regular office/ duty hours, that the claimant is entitled for payment for overtime. If, for the sake of testing the propriety of the impugned order and the conclusion of the learned Labour Court, it is assumed that the claimant had to work overtime, then also it was necessary that the claimant should place before the learned Labour Court evidence to establish that he used to work for additional 7 hours every day, i.e. he used to work for 7 hours in addition to his usual and normal duty hours and that he used to put in such overtime work every single day for entire tenure of 7 years. Such evidence, except the claimant’s own bald oral statement, was not available on record before the learned Labour Court. Such evidence, except the claimant’s own bald oral statement, was not available on record before the learned Labour Court. There was no material on record to substantiate the applicant’s claim that he used to work for 7 hours during night time, i.e. after office hours. Any administrative order/office order by the competent authority instructing or permitting the applicant to work beyond office hours was not placed on record. Merely because additional charge is assigned, it cannot be automatically inferred, without proper, sufficient and cogent evidence, that the concerned person is required to or he shall have to perform the work related to additional charge, after office hours or after his regular duty hours. The conclusion or finding of fact on this count must be based on proper, sufficient or cogent evidence and the Court cannot proceed on all mechanically rely on unsubstantiated oral assertion of the applicant. 13. In view of the fact that the learned Labour Court has passed impugned order and directions without having regard to the above mentioned aspects and in absence of any evidence to support and justify the petitioner’s claim, the order and directions are not sustained. 14. Besides this, it is pertinent to note that the learned Labour Court has also not dealt with two vital contentions and objections raised by the petitioner municipality against the maintainability of the claim for overtime and maintainability of the application under section 33C(2) of the Act for such claim. 15. So far as contention on the ground that the provisions under GCSR are applicable to the municipality and that, therefore, the claim by the applicant for overtime cannot be entertained, is not properly considered and decided by the learned Labour Court. 16. On this count, it is relevant to note that there is no dispute with regard to the fact that the provisions of GCSR are applicable to the petitioner municipality. Therefore, the service conditions of the applicant-claimant would be governed by the provisions under GCSR. In view of the provisions contained under GCSR, the employee whose service conditions are prescribed by and governed by GCSR would not be entitled for overtime wage. In this context, it is relevant to take into account Rule 34 of GCSR. Similar provision was contained under Rule 17 and now the provision is contained under Rule 34 of GCSR. The erstwhile Rule 17 of BCSR reads thus: “17. In this context, it is relevant to take into account Rule 34 of GCSR. Similar provision was contained under Rule 17 and now the provision is contained under Rule 34 of GCSR. The erstwhile Rule 17 of BCSR reads thus: “17. Unless in any case it be otherwise distinctly provided the whole time of a Government servant is at the disposal of Government and he may be employed in any manner required under by the proper authority, whether the services required of him are such as would ordinarily be remunerated from the Consolidated Fund of India or of a State, or from the revenues of a local fund.” 17. Under GCSR, Rule 34 reads thus: “34. Whole time of a Government employee to be at the disposal of Government: Unless in any case it be otherwise distinctly provided, the whole time of a Government employee is at the disposal of Government and he may be employed in any manner required by the proper authority, without a claim for additional remuneration, whether the services required of him are such as would ordinarily be remunerated from the Consolidated Fund of India or of a State or from the funds of a body incorporated or not, which is wholly or substantially owned or controlled by the Government.” 18. When the said provision is taken into account, it becomes clear that the claim by an employee of the petitioner municipality, i.e. claim by an employee whose service conditions are undisputedly governed by provisions under GCSR (or erstwhile BCSR) would not be entitled for overtime wage and consequently, the petitioner’s claim could not have been entertained and granted. Unfortunately, the learned Tribunal failed to take into account erstwhile Rule 17 of the BCSR or Rule 34 of GCSR. 19. The petitioner municipality had opposed maintainability of the application on the ground that such application and such claim cannot be submitted and maintained or entertained in an application filed by invoking provision under section 33C(2) of the Industrial Disputes Act. 20. In this view of the matter, it would be appropriate to consider, at the outset, the scope of application under Section 33C(2) and the scope of said provision and scope of Court's jurisdiction while entertaining recovery application under said provision. 20. In this view of the matter, it would be appropriate to consider, at the outset, the scope of application under Section 33C(2) and the scope of said provision and scope of Court's jurisdiction while entertaining recovery application under said provision. While entertaining, adjudicating and deciding an application filed under Section 33C(2): (a) The learned Labour Court can consider claim which can be computed in terms of money but the right must be crystallized and should arise from and in the course of employer-and-employee relationship. The right should exist as crystallized right. (b) While acting under Section 33C(2), the labour court cannot entertain and adjudicate a claim which is not based on existing right i.e. a claim which is required to be adjudicated upon and converted into right. (c) While entertaining and deciding an application under Section 33C(2), the labour court cannot act as, or cannot exercise jurisdiction of, a labour Court or an industrial tribunal under Section 10 of the Act and it cannot usurp the jurisdiction of and function of the labour Court or industrial tribunal acting under Section 10 of the Act. (d) There is substantive and material difference between money had and might have and that therefore, it is not permissible to labour court acting under Section 33C(2) to receive a claim and adjudicate the claimant's entitlement or to determine the base of the claim. (e) The labour court acting under Section 33C(2) cannot first undertake the process to decide claimant's entitlement or base of the claim and, then, set down the matter for computing and quantifying the amount payable towards such claim. The jurisdiction and function to decide entitlement and base for the claim is of Labour Court or industrial tribunal under Section 10 of the Act. (f) When the entitlement for the claim and base of the claim are adjudicated, then, for the purpose of implementation of such claim or for deciding and removing any ambiguity and/or for quantifying the money value of the adjudicated right, the Court can entertain the application under said section and in that process, the learned Labour Court can decide incidental issues. (g) The power of the labour court acting under Section 33C(2) is akin to the power of executing court i.e. to interpret the decree for the purpose of execution. 21. (g) The power of the labour court acting under Section 33C(2) is akin to the power of executing court i.e. to interpret the decree for the purpose of execution. 21. In this context, it would be appropriate to take into account the observations by Hon'ble Apex Court in certain decided cases. (a) In the case of Municipal Corporation of Delhi vs. Ganesh Razak & Another, (1995) 1 SCC 235 , wherein Hon'ble Apex Court observed and held that: “9. Another decision on the point is Bombay Gas Co. Ltd. vs. Gopal Bhiva, AIR 1964 SC 752 , wherein also Gajendragadkar, J. (as he then was) speaking for the Bench, referring to the above Constitution Bench decision, stated that the proceedings contemplated by Section 33C(2) are analogous to execution proceedings and the Labour Court, like the Executing Court in the execution proceedings governed by the Code of Civil Procedure, would be competent to interpret the award on which the claim is based. It is obvious that the power of the Executing Court is only to implement the adjudication already made by a decree and not to adjudicate a disputed claim which requires adjudication for its enforcement in the form of decree. The Executing Court, after the decree has been passed, is however competent to interpret the decree for the purpose of its implementation. This position was settled by the above Constitution Bench decision and has been the consistent view of this Court ever since then. The Executing Court, after the decree has been passed, is however competent to interpret the decree for the purpose of its implementation. This position was settled by the above Constitution Bench decision and has been the consistent view of this Court ever since then. (8) Since proceedings under Section 33C(2) are analogous to execution proceedings and the Labour Court called upon to compute in terms of money the benefit claimed by a workman is in such cases in the position of an Executing Court, the Labour Court like the Executing Court in execution proceedings governed by the Code of Civil Procedure, is competent under Section 33C(2) to interpret the award or settlement where the benefit is claimed under such award or settlement and it would be open to it to consider the plea of nullity where the award is made without, jurisdiction." After stating the propositions, the decision proceeds to state as under: (SCR p. 144) "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." 11. In Central Inland Water Transport Corpn. Ltd. vs. Workmen, (1974) 4 SCC 696 : 1974 SCC (L&S) 421 : (1975) 1 SCR 153 , it was held with reference to the earlier decisions that a proceeding under Section 33C(2) being in the nature of an execution proceeding, it would appear that an investigation of the alleged right of reemployment is outside its scope and the Labour Court exercising power under Section 33C(2) of the Act cannot arrogate to itself the functions of adjudication of the dispute relating to the claim of reemployment. Distinction between proceedings in a suit and execution proceedings thereafter was pointed out. It was indicated that the plaintiff's right to relief against the defendant involves an investigation which can be done only in a suit and once the defendant's liability had been adjudicated in the suit, the working out of such liability with a view to give relief is the function of an execution proceeding. This distinction is clearly brought out in that decision as under: (SCR p. 159 : SCC pp. This distinction is clearly brought out in that decision as under: (SCR p. 159 : SCC pp. 701-02) In a suit, a claim for relief made by the plaintiff against the defendant involves an investigation directed to the determination of: (i) the plaintiff's right to relief; (ii) the corresponding liability of the defendant, including, whether the defendant is, at all, liable or not; (iii) the extent of the defendant's 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 say, the extent of the defendant's 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 Section 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 Section 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 Section 33C(2) that court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functionssay 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 Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33C(2) of the Act . In such cases, determinations (i) and (ii) are not Incidental to the computation....The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33C(2) of the Act . It is only when the entitlement has been earlier adjudicated or recognised by tile employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power under Section 33C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution.” (Emphasis supplied) (b) In the decision in case of Chief Superintendent, Government Livestock Farm, Hissar vs. Ramesh Kumar [C.A. No. 684 of 1993 dated March 19, 1996], wherein Hon'ble Apex Court observed that: “(2) We are unable to appreciate how the application of the respondent could be entertained under Section 33C (2) of the Act. The remedy of Section 33C (2) is available only in those cases where there is no dispute about entitlement of the workman. The remedy of Section 33C (2) cannot be invoked in a case where the entitlement is disputed. In the instant case, the entitlement of the respondent to regular scale was disputed by the appellant and, therefore, it was not a case in which the remedy of Section 33C (2) could be invoked. The proper course for the respondent was to have his entitlement to regular scale determined by a competent court or tribunal and in the event of nonpayment of the amount payable to him as per his entitlement under such determination he could invoke the remedy under Section 33C(2).” (Emphasis supplied) Thus, even in cases where proper and applicable pay scale is disputed then in such cases application under Section 33C(2) would not be maintainable and the entitlement can be decided by court of competent jurisdiction. (c) In the decision in case of State Bank of Bikaner & Jaipur vs. R.L. Khandelwal, 1968 (1) LLJ 589, Hon'ble Apex Court considered below mentioned facts: “2. (c) In the decision in case of State Bank of Bikaner & Jaipur vs. R.L. Khandelwal, 1968 (1) LLJ 589, Hon'ble Apex Court considered below mentioned facts: “2. The respondent, on 2nd April, 1964, presented an application under Section 33C(2) of the Industrial Disputes Act, 1947 (14 of 1947) (hereinafter referred to as "the Act") claiming that he was entitled to the special allowance prescribed by the Sastry Award on the ground that he had been wrongly reverted on 3rd February, 1956, to do clerical work and by that order, he could not be deprived of his right to receive the supervisory allowance. This application came up before the Central Government Labour Court, Rajasthan, at Jaipur which allowed it and directed payment of the supervisory allowance to the respondent by the appellant. The appellant has now come up by special leave to this court. 3. The claim of the respondent to the supervisory allowance was contested on behalf of the appellant on three different grounds. Two of the grounds related to the jurisdiction of the Labour Court to entertain the application under Section 33C(2) of the Act and to the plea that the respondent had disentitled himself to the claim because of laches and delay inasmuch as the application was filed in 1964 when the claim related to a period which began on 3rd February, 1956. These two grounds were, however, not argued before us, because, on behalf of the appellant, reliance was placed primarily on the third ground on which we consider that the appeal must be allowed. This ground urged was that, during the period for which the respondent was claiming the supervisory allowance, he was not, in fact, either holding a post or working in a post involving work of supervisory nature and, consequently, under the Sastry Award he was not entitled to claim the special allowance.” In light of said facts and having regard to the nature of the claim of the claimant in the said decision, Hon'ble Apex Court observed that: “5. The scope of the function and powers of a Labour Court, when dealing with an application under Section 33C(2) of the Act, has been laid down by this court in several cases...... The scope of the function and powers of a Labour Court, when dealing with an application under Section 33C(2) of the Act, has been laid down by this court in several cases...... These decisions make it clear that a workman cannot put forward a claim in an application under Section 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 only requiring reference under Section 10 of the Act......... The question whether his reversion was wrongful or rightful, or whether it should be set aside, is not a matter within the jurisdiction of a Labour Court dealing with an application under Section 33C(2). The vacation of such an order can only be sought by raising an industrial dispute and having it decided in accordance with the other provisions of the Act. A Labour Court, acting under Section 33C(2), has to decide the application on the basis that, in fact, the respondent was, during the relevant period, doing routine clerical work and was not employed on supervisory duties.......... The justification or validity of the order of reversion dated 3rd February, 1956, could not be gone into by the Labour Court in this proceeding under Section 33C(2). The Labour Court had to proceed on the basis that the order of 3rd February, 1956, was effective and did result in the respondent ceasing to work in the supervisory capacity and being employed on routine clerical work........” (Emphasis supplied) (d) In the decision in case of State of U.P. & Another vs. Brijpal Singh, (2005) 8 SCC 58 , Hon'ble Apex Court observed, inter-alia, that: “10. It is well settled that the workman can proceed under Section 33C(2) only after the Tribunal has adjudicated on a complaint under Section 33A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. It is well settled that the workman can proceed under Section 33C(2) only after the Tribunal has adjudicated on a complaint under Section 33A or on a reference under Section 10 that the order of discharge or dismissal was not justified and has set aside that order and reinstated the workman. This Court in the case of Punjab Beverages Pvt. Ltd. vs. Suresh Chand, (1978) 2 SCC 144 held that a proceeding under Section 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 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. Proceeding further, this Court held that 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......It is not competent to the Labour Court exercising jurisdiction under Section 33C(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 Section 10 of the Act. 11. In the case of State Bank of India vs. Ram Chandra Dubey & Others, (2001) 1 SCC 73 , this Court held as under: "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 33C(2) of the Act. The benefit sought to be enforced under Section 33C(2) of the Act is necessarily a preexisting benefit or one flowing from a preexisting right. The difference between a preexisting right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The benefit sought to be enforced under Section 33C(2) of the Act is necessarily a preexisting benefit or one flowing from a preexisting right. The difference between a preexisting 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 33C(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....... 13......Thereafter, the Labour Court, in the instant case, cannot arrogate to itself the functions of an Industrial Tribunal and entertain the claim made by the respondent herein 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 Section 10 of the I.D. Act. Therefore, the Labour Court has no jurisdiction to adjudicate the claim made by the respondent herein under Section 33C(2) of the I.D. Act in an undetermined claim and until such adjudication is made by the appropriate forum, the respondent-workman cannot ask the Labour Court in an application under Section 33C(2) of the I.D. Act to disregard hi s dismissal as wrongful and on that basis to compute his wages. It is, therefore, impossible for us to accept the arguments of Mrs. Shymala Pappu that the respondent-workman can file application under Section 33C(2) for determination and payment of wages on the basis that he continues to be in service pursuant to the said order passed by the High Court in Writ Petition No. 15172 of 1987 dated 28.10.1987......” (Emphasis supplied) 22. Shymala Pappu that the respondent-workman can file application under Section 33C(2) for determination and payment of wages on the basis that he continues to be in service pursuant to the said order passed by the High Court in Writ Petition No. 15172 of 1987 dated 28.10.1987......” (Emphasis supplied) 22. When present case is examined in light of above quoted observations by Hon’ble Apex Court it becomes clear that the learned Court could not and ought not have entertained the application and that the application was not maintainable and should have been rejected on that ground. 23. In present case, the petitioner, i.e. the claimant failed to establish preexisting right. In present case not only preexisting right is absent, actually the provision under erstwhile Rule 17 (of BCSR) or the provision under present Rule 34 (of GCSR) provides that an employee would not be entitled for overtime wage because the employee and his service are at disposal of Government for whole time and in any manner required by proper authority, without claim for additional remuneration. 24. The said provision amplifies the fact that not only the claimant did not have any pre-page existing right but, actually, the provision foreclosed and denied such right and made the claim for overtime wage non-tenable. The above mentioned provision under GCSR (or erstwhile BCSR) bars the claim for overtime wage by an employee whose service conditions are governed by GCSR and that, therefore, the claim/application could not have been entertained. The impugned order suffers from arbitrary exercise of jurisdiction and exercise of jurisdiction not conferred by the provision/Act. 25. Unfortunately, the learned Labour Court failed to take into account the above mentioned aspects. The learned Labour Court failed to appreciate that when the provision under applicable service conditions specifically and expressly bars claim for overtime wage, then the said provision translates into the fact that an employee whose service conditions are prescribed by GCSR does not possess and cannot have any preexisting right and/or crystalised claim/right to claim overtime wage and that, therefore, an application under section 33C(2) would not be maintainable and cannot be entertained for such claim. 26. Since the learned Labour Court passed the impugned order without properly considering and appreciating the above discussed aspects, the impugned order is defective and unsustainable. The learned Labour Court has committed error in entertaining the application and allowing the claim for overtime wage. 27. 26. Since the learned Labour Court passed the impugned order without properly considering and appreciating the above discussed aspects, the impugned order is defective and unsustainable. The learned Labour Court has committed error in entertaining the application and allowing the claim for overtime wage. 27. In the impugned award, the learned Labour Court has failed to take into account the legal position explained in the said decisions. The learned Labour Court has also failed to appreciate that there was no material on record which had evidentiary and probative value to establish that the petitioner had worked every day for seven hours beyond his regular duty/office hours and there was no material on record to prove and establish that the claimant had worked every day for 7 hours in addition to his regular duty/office hours, continuously for 7 years. 28. The learned Labour Court also failed to appreciate that the petitioner's service conditions were governed by GCSR and that therefore, in light of the provision contained under Rule 17 of the GCSR, the claim for overtime by government employee or an employee in municipality/panchayat would not be maintainable. 29. The learned Labour Court passed the impugned award without considering the provisions under Rule 17 of the GCSR and that therefore, the award is not sustainable. 30. The learned Labour Court has passed the impugned award without proper application of mind to the facts of the case as well as applicable legal position and relevant provisions. 31. The impugned award being contrary to and in disregard to the above mentioned decision by this Court and Hon'ble Apex Court and also in total disregard to the provisions under the GCSR, is not sustainable and deserves to be set aside and that, therefore, it is hereby set aside. The petition is accordingly allowed. Rule is made absolute to the aforesaid extent.