JUDGMENT : SANGEETA CHANDRA, J. 1. Shri Virendra Misra, appears for the petitioners is present. 2. The matter has been listed peremptorily. Although the name of Mr. Amar Nath Tripathi, has been shown as one of the counsel for the contesting-respondents but he has failed to appear and assist this Court, therefore, this Court has perused the counter affidavit filed by him and is proceeding to dispose of the case on merits. 3. This petition has been filed by the petitioners i.e. the Employers challenging the order dated 18.07.2006 passed by the Presiding Officer, Labour Court, U.P. Lucknow in Miscellaneous Case No. 68 of 2003. It has been submitted by Shri Virendra Misra, that the respondent no.3 filed an application under Section 33-C (2) of the U.P. Industrial Dispute Act with the allegation that he had been working as a Chowkidar in the establishment of the Employers with effect from 07.06.1979 and was retrenched in August, 1998. His dues relating to Provident Fund, Employees Insurance Scheme, Salary and Retrenchment Compensation have not been paid by the Employers. The total amount of Rs.21,927/- was prayed to be given as arrears of Salary, Compensation, Bonus, Leave Encashment after calculation. 4. It has been submitted that before 31-C (2) application can be filed there should have been adjudication with respect to the amount of dues or there should have been a settlement before the Conciliation Officer with regard to the amount due on the Employers. Since there was no adjudication or ascertainment of liability and a mere demand was placed in the application under Section 33-C (2), such application ought to have been dismissed as not maintainable. The Labour Court is not authorized to adjudicate the dues of entitlement on the basis of mere claim. It can only execute the Award or interpret a settlement on the basis of which a claim is made. Shri Virendra Misra, has pointed out that from the order impugned that it is apparent that initially notices were issued through Registered Post AD. which returned unserved, later a publication in the Daily Newspaper 'AAJ' was made on 23.10.2005 and then the Labour Court decide to proceed ex-parte in the matter on 01.05.2006. One legal practitioner Shri Rajpal Singh, is alleged to have appeared at one of the hearings but later on he withdrew his power. which returned unserved, later a publication in the Daily Newspaper 'AAJ' was made on 23.10.2005 and then the Labour Court decide to proceed ex-parte in the matter on 01.05.2006. One legal practitioner Shri Rajpal Singh, is alleged to have appeared at one of the hearings but later on he withdrew his power. The Labour Court went on to calculate the amount only on the basis of an application made by the Workmen and directed the payment of Rs.12,215/-. In pursuance of the said order dated 18.07.2006 a recovery citation was issued by the Tehsil Authorities on 07.07.2007. 5. It has been submitted by the learned counsel for the petitioner that there was no adjudication at all as no Reference was made on the claim of the Workmen. He has submitted on the basis of an annexure to his writ petition that one Payment of Gratuity case was filed namely P.G. Case No.1 of 2005 before the Controlling Authority and the Employers had been directed to pay a Gratuity alongwith interest by the Controlling Authority on 28.03.2006. The Employers thereafter filed an appeal namely Appeal No.83 of 2006 which was also rejected by the Appellate Authority. A copy of the order passed by the Appellate Authority has been filed as Annexure-3 to the counter affidavit filed on behalf of the contesting-respondent no.3. It has been submitted that the petitioners have paid the amount as adjudicated by the Controlling Authority and the Appellate Authority in P.G. Case No.1 of 2005 and the Appeal No.83 of 2006. 6. From perusal of the counter affidavit, this Court finds that the averments made by the petitioners with regard to no adjudication case being earlier filed and no settlement being entered into between the parties, has not been replied to specifically by the contesting-respondent. He has referred to Payment of Gratuity i.e. P.G. Case No. 1 of 2005 being filed and has admitted that the Employers have paid the dues as adjudicated by the Controlling Authority and the Appellate Authority. 7. Learned counsel for the petitioners has placed reliance upon the case of State of U.P. and Another Vs. Brijpal Singh, (2005) 8 SCC 58 wherein the Hon'ble Supreme Court has observed that the Workman can proceed under Section 33-C (2) only after the Tribunal has adjudicated on a complaint under Section 33-A or on a reference under Section 10. 7. Learned counsel for the petitioners has placed reliance upon the case of State of U.P. and Another Vs. Brijpal Singh, (2005) 8 SCC 58 wherein the Hon'ble Supreme Court has observed that the Workman can proceed under Section 33-C (2) only after the Tribunal has adjudicated on a complaint under Section 33-A or on a reference under Section 10. 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. 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 33-C (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. The Labour Court has no jurisdiction to first decide the workman'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. 8. The Supreme Court had followed earlier decisions in the case of Punjab Beverages (P) Ltd. Vs. Suresh Chand, (1978) 2 SCC 144 : 1978 SCC (L&S) 165; Muncipal Corpn. of Delhi V. Ganesh Razak, (1995) 1 SCC 235 : 1995 SCC (L&S) 296: (1995) 29 ATC 93; State Bank of India V. Ram Chandra Dubey, (2001) 1 SCC 73 : 2001 SCC (L&S) 3, 9. The learned counsel for the petitioners Shri Virendra Misra has further placed reliance upon the judgment rendered by the Hon'ble Supreme Court in the case of D. Krishnan and Another Vs. Special Officer, Vellore Cooperative Sugar Mill and Another, (2008) 7 SCC 22 . 10. The learned counsel for the petitioners Shri Virendra Misra has further placed reliance upon the judgment rendered by the Hon'ble Supreme Court in the case of D. Krishnan and Another Vs. Special Officer, Vellore Cooperative Sugar Mill and Another, (2008) 7 SCC 22 . 10. In the aforecited judgment the Supreme Court again relied upon the earlier judgments and observed that the appellant's claim for over time wages being claim as contested by his Employers, the proceedings pre-supposed some adjudication leading to a determination of a right which had to be enforced. There was no such adjudication or Settlement arrived at between the parties. The proceedings under Section 33-C (2) being in the nature of Execution proceedings, therefore, could not be allowed to continue. 11. This Court has perused the judgments cited by the learned counsel for the petitioners as also perused the counter affidavit and finds a lot of substance in the arguments made by the learned counsel for the petitioners. 12. From a perusal of the order dated 18.07.2006 it is apparent that the respondent no.1 on the basis of an application made under Section 33-C (2), had determined the Salary the Arrears whereof were claimed to be unpaid, as also the Bonus, the Leave Encashment Dues and the Retrenchment Compensation. Such calculation was made independently of any earlier adjudication with regard to the amount due from the Employers to the Workman. 13. The order impugned dated 18.07.2006 passed by the Presiding Officer, Labour Court, U.P. Lucknow, is set aside as also Recovery Citation issued in pursuance thereof. 14. The Writ petition stands allowed.