JUDGMENT : Heard Mr. Anoop Kumar Mehta, learned counsel for the petitioner. None appears on behalf of the respondents in spite of valid service of notice. 2. In this writ application, the petitioner has prayed for quashing the order dated 01.06.2011 passed by the learned Presiding Officer, Labour Court, Dhanbad in M.J. Case No. 17 of 2010, in which while exercising its powers under Section 33-(C)(2) of the Industrial Disputes Act the management has been directed to refund all deducted amount of pension with interest to the respondents amounting to Rs. 1,30,377.95. 3. The averments made in the writ application reveal that Sita Ram Kewat was an employee of Basanti Mata Colliery of M/s. B.C.C.L. He was a member of the Coal Mines Provident Fund and was also contributing towards pension under the Coal Mines Pension Scheme, 1998. In course of service Sita Ram Kewat died on 16.10.2006. His wife had already predeceased him. The respondents being the children of late Sita Ram Kewat had made a request to the petitioner for refund of contributions of their deceased father but since nothing was done an application was preferred by them under Section 33-(C)(2) of the Industrial Disputes Act in which it was stated that their deceased father was a member of CMPF and regular deductions were made from the pay slip from April, 1989 till his death i.e. 16.10.2006 against pension and therefore the respondents claim that they are entitled to the refund of the entire amount along with interest. 4. The management on being noticed appeared and filed its rejoinder wherein it has been stated that under the Coal Mines Pension Scheme, 1998 no one in the family is entitled to receive pension since the wife had already predeceased the employee concerned and the two sons had already crossed the age of 25 years. In course of proceeding evidence was led on behalf of the respondents being A.W. 1 (Pradeep Kumar Kewat) who has basically reiterated their claim of refund which was deducted w.e.f. 01.04.1989 to October, 2006 towards pension. The management had neither examined any witness nor had objected to the calculation chart submitted by the respondents. 5. It has been stated by Mr. The management had neither examined any witness nor had objected to the calculation chart submitted by the respondents. 5. It has been stated by Mr. Anoop Kumar Mehta, learned counsel for the petitioner that no claim under Section 33-(C)(2) of the Industrial Disputes Act is made out as neither there was any predetermined right nor any preexisting right which had accrued in favour of the respondents. It has been stated that the entitlement has to be first decided and since there is no order which has determined the claim the application under Section 33-(C)(2) of the Industrial Disputes Act for computing any benefit in terms of money cannot arise and therefore since the application itself is not maintainable no order could have been passed in favour of the respondents. 6. On consideration of the averments made as well as the arguments advanced by the learned counsel for the petitioner the only question which is to be determined is whether the application preferred by the respondents under Section 33-(C)(2) of the Industrial Disputes Act is maintainable or not. This Court in view of the specific provision as laid down under Section 33-(C)(2) of the Industrial Disputes Act with respect to the entitlement of a workman of any benefit capable of being computed in terms of money has ventured further as to whether any legal right flows to the respondents who are the heirs of late Sita Ram Kewat. 7. In such context reference may be made to the case of “Shri Rameshwar Manjhi (Deceased) through his son Shri Lakhiram Manjhi versus Management of Sangramgarh Colliery and Others” reported in (1994) 1 SCC 292 , wherein taking a different view from that of the Delhi High Court as well as the Orissa High Court that claim for computation under Section 33-(C)(2) of the Industrial Disputes Act dies with the death of the workman it was held that such claim must survive to the heirs of the workman as the cause of action created in favour of workman under sub-section (2) of Section 33-(C) of the Industrial Disputes Act should in normal circumstances survive to the heirs. 8. Thus the term workman as construed in Section 33-(C)(2) of the Industrial Disputes Act in case of his death the claim shall survive to the legal heirs unfettered. 9. 8. Thus the term workman as construed in Section 33-(C)(2) of the Industrial Disputes Act in case of his death the claim shall survive to the legal heirs unfettered. 9. The next question which arises for consideration is whether such application is maintainable since it has been stated by the learned counsel for the petitioner that there has to be a predetermined or preexisting right as an application under Section 33-(C)(2) of the Industrial Disputes Act is in the nature of an execution proceeding. In this context he has referred to the case of “State of U.P., and Another versus Brijpal Singh” reported in 2005 8 SCC 58 . The relevant part of the aforesaid judgment is referred to herein below: “11. In the case of Municipal Corpn. of Delhi v. Ganesh Razak this Court held as under: (SCC pp. 241-42, paras 12-13) “12. The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen 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 proceed to compute the benefit so adjudicated on that basis in exercise of its power under Section 33-C(2) of the Act. 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 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. 13. In these matters, the claim of the respondent workmen who were all daily-rated/casual workers, to be paid wages at the same rate as the regular workers, had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach. 13. In these matters, the claim of the respondent workmen who were all daily-rated/casual workers, to be paid wages at the same rate as the regular workers, had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach. 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 to 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 enuring 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.” 12. In the case of State Bank of India v. Ram Chandra Dubey this Court held as under: (SCC pp. 77-78, paras 7-8) “7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen. 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 preexisting 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 quasijudicial 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.” 13. Thus, it is clear from the principle enunciated in the above decisions that the appropriate forum where question of back wages could be decided is only in a proceeding before a forum to whom a reference under Section 10 of the Act is made. 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 ID Act. Therefore, the Labour Court had no jurisdiction to adjudicate the claim made by the respondent herein under Section 33-C(2) of the ID 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 33-C(2) of the ID Act to disregard his dismissal as wrongful and on that basis to compute his wages. It is, therefore, impossible for us to accept the arguments of Mrs Shyamla Pappu that the respondent workman can file application under Section 33-C(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. The argument by the learned counsel for the workman has no force and is unacceptable. The argument by the learned counsel for the workman has no force and is unacceptable. The Labour Court, in our opinion, has erred in allowing the application filed under Section 33-C(2) of the ID Act and ordering payment of not only the salary but also bonus to the workman although he has not attended the office of the appellants after the stay order obtained by him. The Labour Court has committed a manifest error of law in passing the order in question which was rightly impugned before the High Court and erroneously dismissed by the High Court. The High Court has also equally committed a manifest error in not considering the scope of Section 33-C(2) of the ID Act. We, therefore, have no hesitation in setting aside the order passed by the Labour Court in Misc. Case No. 11 of 1993 dated 23-8-1995 and the order dated 9-1-2002 passed by the High Court in CMWP No. 36406 of 1995 as illegal and uncalled for. We do so accordingly.” 10. What can be culled out from the aforesaid judgment is that the learned Labour Court does not have the jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated while exercising powers under Section 33-(C)(2) of the Industrial Disputes Act. The issue at first has to be adjudicated and only then the application under Section 33-(C)(2) of the Industrial Disputes Act can be filed. However, the same is with respect to a predetermined right and not a preexisting right. By a preexisting right it would mean that where a right already exists and can be acted upon irrespective of their being a predetermination and such right is in contrast to a predetermined right in which the issue has first to be adjudicated upon and then only an application under Section 33-(C)(2) of the Industrial Disputes Act is maintained. 11. Admittedly there has been no pre-adjudication of the claim of the respondents and in view of the factual matrix of the case which related to refund of the pension amount regularly deposited by the deceased employee the same gives rise to a preexisting right which has been availed by the respondents by filing application under Section 33-(C)(2) of the Industrial Disputes Act. 12. Such being the scenario the application preferred by the respondents under Section 33-(C)(2) of the Industrial Disputes Act is held to be maintainable. 12. Such being the scenario the application preferred by the respondents under Section 33-(C)(2) of the Industrial Disputes Act is held to be maintainable. 13. So far as the factual aspects of the case are concerned as has been stated hereinbefore the management had neither produced any witness nor had objected to the calculation chart submitted by the respondents. It has not been denied that deduction towards family pension was not made from the pay of the deceased employee. The amount so deducted from the pay of the deceased employee towards pension would automatically devolve upon his legal heirs as the same is a contribution made by the employee. In fact in the Coal Mines Pension Scheme, 1998 which has been brought on record Clause 17 deals with payment of outstanding benefits and it has been envisaged that where an employee dies in service and certain amounts have accrued under the provisions of the scheme such amount shall be paid in equal share to the widow or if there is no widow to the surviving children. 14. Thus the claim of the respondents under Section 33-(C)(2) of the Industrial Disputes Act was rightly made and the learned Labour Court had correctly decided the claim in favour of the respondents. 15. In view of the aforesaid discussions, the impugned order dated 01.06.2011 passed by the learned Presiding Officer, Labour Court, Dhanbad in M.J. Case No. 17 of 2010 does not merit any interference and the present writ application accordingly stands dismissed.