JUDGMENT : 1. By filing the present petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the award dated 09.10.2009 passed by the learned Labour Court, Vadodara in Recovery Application No.384 of 2002, whereby, the application of the workman came to be partly allowed and the petitioners were directed to pay Rs.87,000/- (Rupees Eighty Seven Thousand Only) to the respondent – workman towards the dues of the salary. 2. For the sake of brevity and convenience, the parties are referred to as “petitioner” and “respondent”. 3. It is contended that the employer is the Cooperative Society and is established by the educated Christian and a retired teacher. It is further contended that the respondent was not employee of the society, but he was being paid honorarium for his services. It is also contended that the respondent has committed a fraud and misappropriation of huge amount of Rs.1,56,324/- (Rupees One Lakh Fifty Six Thousand Three Hundred Twenty Four Only) and, therefore, the Registrar of the Cooperative Society has lodged the complaint against the respondent. It is further contended by the society that the respondent himself has tendered his resignation and it was accepted and at that time, he had assured to make good any amount which is to be paid back to the society. It is also contended that the respondent was not a workman within the meaning of the Industrial Disputes Act, 1947 (hereinafter be referred to as the “I.D. Act.”) as he was a retired teacher who was a promoter of the society and was officer bearer of the society in honorary capacity and was drawing Rs.500/- as honorarium. It is further contended that the Labour Court has failed to appreciate the fact that there was no master and servant relationship between the society and the workman. It is contended that no proof of payment of any sort of wages was placed on record and in absence of such documents, no order ought to have been passed by the Labour Court. It is contended that the Labour Court has committed serious error of facts and law in holding that the office bearer under the Cooperative Societies Act working on honorary basis be treated as a workman. It is contended that the Labour Court has committed serious error of facts and law in holding that the office bearer under the Cooperative Societies Act working on honorary basis be treated as a workman. It is contended that the Labour Court has failed to appreciate the fact that the recovery application under Section 33-C(2) of the I.D. Act can be filed only against a pre-existing right which could be examined in a proper reference. It is further contended that in the present case, there was no pre-existing right and as such, the respondent was not being a workman, the I.D. Act itself was not applicable. According to the society, the Labour Court has no jurisdiction and it has exercised its power without any jurisdiction. It is contended that the award is bad-in-law and it deserves to be quashed and set aside and more so because such a fake recovery application had been created after inordinate and unexplained delay. On all these grounds, the society has prayed to pass appropriate writ, order or direction or writ in the nature of certiorari to quash and set aside the award passed in Recovery Application No.384/2002. 4. The original respondent – workman has filed the affidavit-in-reply wherein he has categorically stated that he was the promoter of the society and working on honorary service has disputed the question of facts and, has taken any stand that the version of the society is not tenable. He has stated that in Annual Report of Second Anniversary of the society 2000-2001 whereby the title headings of the cover page discloses the fact that the workman is included in the list of employees as secretary which was produced before the Labour Court in Recovery Application. He has further stated that there is no dispute that in the balance sheet, Loss and Profit, Credit and Debit Account, Rs.12,000/- has been shown towards the expenses of salary which is also the part of the said Annual Report of the society. According to him, the version of the honorarium as alleged by the society is not based on good foundation. He has further stated that the allegation of misappropriation of huge amount is not proved after police complaint and subsequent investigation. He has stated that he was a paid employee. According to him, the version of the honorarium as alleged by the society is not based on good foundation. He has further stated that the allegation of misappropriation of huge amount is not proved after police complaint and subsequent investigation. He has stated that he was a paid employee. He has stated that the dispute raised by the society regarding non-existence of the employer and employee relationship is not proved before the Labour Court and the Labour Court has clearly held against the society. It is further stated that the society has every record, but it has not been believed by the Labour Court and the same has not been properly proved by the society before the Labour Court. It is stated by the respondent in the affidavit-in-reply that the amount arrived at by the Labour Court on the basis of the workman regarding monthly salary of Rs.2000/- as well as unpaid salary of Rs.87,000/- as against 53 working months in the society and Rs.93,000/- towards the house rent allowance is proper. It is stated that the claim of the recovery amount, as put up by the workman, has not been controverted by the society. It is also stated that the point raised regarding the powers of the society under the Gujarat Cooperative Society's Act, 1961 has not been raised before the Labour Court and it cannot be, now, agitated by the society. 4.1 While referring to Section 33(C)(2) of the I.D. Act, it is further stated by the respondent that it is based on two counts (i) on the basis of pre-existing rights which can be counted on the basis of agreement, award and settlement between employer and employee as contemplated under Section 10(1) Conciliation proceedings, Section 18 and Section 2(P) of the I.D. Act and (ii) on consideration of recovery based on continuous flowing rights based on regular monthly salaries during the course of employment. It is stated that the calculations of unpaid salary for recovery proceeding cannot be removed from the zone of consideration of Section 33(C)(2) of the recovery proceedings of the I.D. Act. It is narrated that the Labour Court has taken into consideration all these aspects and has properly passed the award in his favour. 5. The society has also filed affidavit-in-rejoinder denying the stand put up by the respondent and reiterated its stand in the petition. 6. It is narrated that the Labour Court has taken into consideration all these aspects and has properly passed the award in his favour. 5. The society has also filed affidavit-in-rejoinder denying the stand put up by the respondent and reiterated its stand in the petition. 6. The respondent has also filed affidavit-in-surrejoinder against the affidavit-in-rejoinder of the society relating to the same facts and the counter affidavit against the sur-rejoinder by the society reiterating his stand. 7. Heard Mr. R. D. Raval, learned advocate for the petitioner – society and Mr.P. J. Mehta, learned advocate for the respondent through video conferencing at length. 8. Mr. R. D. Raval, learned advocate for the petitioner – society has vehemently submitted the same facts which are narrated in the memo of petition, affidavit-in-rejoinder and additional affidavit. He has submitted that the respondent was not servant of the society and he was working on honorary basis, cannot be treated as a respondent. He has submitted that respondent is one of the person who has created the society. He has submitted that the respondent was working as secretary of the society and the secretary cannot be an employee of the society. According to him, the respondent has heavily relied upon the first page of the annual report wherein his name is printed in the title of the society, but this cannot give any right to the respondent to file recovery application. While referring to the documentary evidence on record, Mr. Raval, learned advocate has submitted that he was discharging his duty by paying the amount and that fact has not been challenged by the respondent before any Court and straightway filed the recovery application, which is not tenable in the eyes of law. He has submitted that as per Section 33-C (2) of the I.D. Act, there must be some pre-existing right in his favour. He has submitted that there cannot be any pre-existing right to file the recovery application. He has submitted that the respondent ought to have first approached the Labour Court for establishment of his right as a respondent and, thereafter, if award is passed in his favour, he could have filed appropriate application under Section 33-C(2) of the I.D. Act. 8.1 Mr. He has submitted that the respondent ought to have first approached the Labour Court for establishment of his right as a respondent and, thereafter, if award is passed in his favour, he could have filed appropriate application under Section 33-C(2) of the I.D. Act. 8.1 Mr. Raval, learned advocate for the petitioner has submitted that considering the definition of the “employer” and “workman” in the provisions of the I.D. Act, those characteristics are not proved in the case and the Labour Court has committed serious error of facts and law in this regard. According to him, the entire award is based on the assumption and presumption which cannot be sustainable in the eyes of law. 8.2 Mr. R. D. Raval, learned advocate for the petitioner has submitted that as there was misappropriation on the part of the respondent, the Registrar has already filed the criminal complaint against him. He has submitted that there is no evidence as to the respondent being the respondent and there is no clinching evidence. He has further submitted that the respondent was retired teacher, who is one of the promoters of the society. He has submitted that in view of the interim order of this Court, the society has already deposited the amount in the High Court. He has submitted that considering the material facts on record and the legal aspects, the present petition may be allowed and the amount which has been deposited by the society be refunded to the society. 8.3 Mr. Raval, learned advocate for the petitioner has relied upon the following decisions, in support of his arguments. (1) Municipal Corporation of Delhi Vs. Ganesh Razak, (1995) 1 SCC 235 ; (2) Manilal Khimjibhai Makwana Vs. Commissioner, Ahmedabad Municipal Corporation in Special Civil Application No.2243/2019 dated 5.2.2019 passed by the Coordinate Bench of this Court (Coram: Hon'ble Mr. Justice C. L. Soni) 9. Per contra, Mr.P. J. Mehta, learned advocate for the respondent has submitted that the Labour Court has properly appreciated the facts and has not committed any error of facts and law in granting the recovery application. He has submitted that nobody has appeared on behalf of the petitioner – society and has not produced any oral and documentary evidence and, therefore, no fault could be found in the award of the Labour Court. He has submitted that nobody has appeared on behalf of the petitioner – society and has not produced any oral and documentary evidence and, therefore, no fault could be found in the award of the Labour Court. While referring to the criminal complaint filed against the respondent by the Registrar of the society, he has submitted that there is specific averment to the effect that the respondent of the recovery application i.e. respondent herein was appointed as secretary and during his service as secretary, he has not committed any fraud. According to him, this averment itself suggests that the respondent was workman and there is subsistence of the relationship of employer and employee between the parties. 9.1 Mr. Mehta, learned advocate for the respondent has submitted that the “secretary” is a workman and even the present petitioner – society has not produced any documentary evidence and management has also not produced the same before the Labour Court. He has submitted that the management has having every power, but no such power has been vested to the secretary. He has submitted that the receipt of the rent paid to the wife of the secretary is also admitted facts. He has submitted that as the society did not produce any documentary evidence, the adverse inference needs to be drawn against the society. 9.2 Mr. Mehta, learned advocate for the respondent has submitted that the petition is filed under Articles 226 and 227 of the Constitution of India under the supervisory jurisdiction of the High Court. According to him, no finding of facts of the Labour Court can be disturbed as the Labour Court has appreciated the facts and law in its proper perspective. He has submitted that having a revisonal power, this Court cannot act as an appellate forum. He has submitted that it is held in catena of decisions of the Apex Court that Section 33-C(2) of the I.D. Act is wide enough which includes every claim of the respondent which was available to him as of right. He has submitted that there is no question of application of Section 10A of the I.D. Act in the present case. He has submitted that there is no question of application of Section 10A of the I.D. Act in the present case. He has submitted that the dues of the society has already been paid and the ground raised by the petitioner – society in the present petition was never raised before the Labour Court and, therefore, in absence of such ground, the Labour Court has passed the impugned award. He has submitted that the document which has been produced by the society, in the present case, was not produced before the Labour Court and the salary ledger has not been produced by the society. He has prayed to dismiss the present petition. 9.3 Mr.Mehta, learned advocate for the respondent has relied upon the following decisions. (1) Deepak Kumar Vs. Presiding Officer, Labour Court and others in Civil Writ Petition No.7066/1992 dated 3.6.1992 passed by the Division Bench of Punjab and Haryana High Court; (2) Khalil Ahmed Bashir Ahmed Vs. Tufelhussein Samasbhai Sarangpurwala, AIR 1988 SC 184 ; (3) Mohd. Yunus Vs. Mohd. Mustaqim and others, AIR 1984 SC 38 ; 9.4 In rejoinder, Mr. Raval, learned advocate for the petitioners has submitted that the observation of the Labour Court is not proper and the decisions cited by the learned advocate for the respondent is not applicable to the facts of the present case and the entire case is based on legal aspects which needs to be decided by this Court. He has submitted that it was the duty of the Labour Court to decide the matter as per the provisions of the I.D. Act. He has prayed to allow the present petition. 10. In the case of Municipal Corporation of Delhi (supra), the Apex Court has observed in relation to the jurisdiction of the Lanbour Court under Section 33-C(2) of the I.D. Act that where very basis of claim or entitlement of the workmen regarding certain benefits is disputed, the dispute is not incidental to the benefit claimed and, therefore, outside the scope of Section 33-C(2), the Labour Court will have no jurisdiction to entertain the matter. It is further observed by the Apex Court therein that it can only interpret the award or the settlement on the rights of the workmen. It is further observed by the Apex Court therein that it can only interpret the award or the settlement on the rights of the workmen. In that case the question involved was maintainability of the claim of the workmen under Section 33-C(2) of the Act and the workmen were claiming computation of arrears of their wages on the basis of 'Equal Pay for Equal Work'. The maintainability of the proceeding were challenged on the ground that their claim being disputed, the proceedings under Section 33- C(2) was not maintainable. The Apex Court has ultimately observed in the said case that the Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefits so adjudicated on that basis in exercise of powers under Section 33-C(2) of the Act. It is also observed by the Apex Court that it is only when the entitlement has only been adjudicated or recognised by the employer and thereafter for the purpose of enforcement thereof some ambiguity required interpretation that the application to the Labour Court can be filed under Section 33-C(2) like an executing Court. 11. In the case of Deepak Kumar (supra), the Division Bench of Punjab and Haryana High Court has held in relation to Section 33-C(2) of the I.D. Act wherein it has been observed that the Labour Court has got jurisdiction to decide the question whether the applicant was a “workman” as defined in the aforesaid Act because the Labour Court can proceed with an application for computation of the benefits claimed only on proof of the facts that the applicant was workman. This was inherent in the provisions of Section 33-C(2) to invest the Labour Court with the jurisdiction to compute arrears of pay or wages. 12. In the case of Khalil Ahmed Bashir Ahmed (supra), the Apex Court, regarding the powers of the High Court under Article 227 of the Constitution, has observed in para-13 which reads as under:- “13. The intention here is manifest. In any event this is a possible view that could be taken. This Court in Venkatlal G. Pittie v. Bright Bros. In the case of Khalil Ahmed Bashir Ahmed (supra), the Apex Court, regarding the powers of the High Court under Article 227 of the Constitution, has observed in para-13 which reads as under:- “13. The intention here is manifest. In any event this is a possible view that could be taken. This Court in Venkatlal G. Pittie v. Bright Bros. (Pvt.) Ltd. (1987) 2 Scale 115 : ( AIR 1987 SC 1939 ) and Beopar Sahayak (P) Ltd. v. Vishwa Nath (1987) 2 Scale 27 : ( AIR 1987 SC 2111 ) held that where it cannot be said that there was no error apparent on the face of the record, the error if any has to be discovered by long process of reasoning and the High Court should not exercise jurisdiction under Art. 227 of the Constitution. See in this connection the observations of this Court in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137 . Where two views are possible and the trial court has taken one view which is a possible and plausible view merely because another view is attractive, the High Court should not interfere and would be in error in interfering with the finding of the trial court or interfering under Art. 227 of the Constitution over such decision.” 13. In the case of Mohd. Yunus (supra), while dealing with the powers of the High Court under Article 227 of the Constitution, has observed in para-7 which reads as under:- “7. The supervisory Jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited “to seeing that an inferior Court or Tribunal functions within the limits of its authority,” and not to correct an error apparent on the face of the record, much less an error of law. In this case, there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art. 227, the High Court does not act as an Appellate Court or Tribunal. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Art. 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision.” 14. In the case of Mahilal Kimjibhai Makwana (supra), the Coordinate Bench of this Court (Hon'ble Mr. Justice C.L. Soni) has, while considering the factual aspects, observed that “it is not the case where the petitioner got reinstatement in service by virtue of any order made by either Labour Court or the Industrial Tribunal or any other Court. Even if, there is any such order of reinstatement but without relief for the back wages, it will not be open to the petitioner to claim recovery of the salary/wages for the interregnum period, by resorting to the provision of section 33(C)(2), of the Act. What is being claimed by the petitioner is to hold that since the Commissioner made order dated 29.01.2007 for taking him back in service to his original post, he has automatically become entitled to the benefits of salary/wages, which could be referred as back wages, for the period from the date of his termination from service till the date he was taken back in service pursuant to the order made by the Commissioner. Such is not permissible in the proceedings under section 33C(2) of the Act and, in that context, the Labour Court has recorded that the petitioner has no pre-existing right to claim recovery of the salary/wages for the period between the date of termination of his services and the date of his getting back in service pursuant to the order made by the Commissioner”. 15. Considering the submissions made on behalf of both the sides as well as legal provisions as referred to by both the parties and having considered the materials placed on record, it appears that the contentions made by the respondent to the effect that he was serving as secretary and getting Rs.2,000/- as wages from the society and his house is rented to the society and there is arrears of salary and house rent on the part of the society are contentious issues. According to the respondent, the society has not paid him the wages as agreed between the parties and has also not paid the rent of the house to him. On that basis, the respondent has filed Recovery Application No.384/2002 under Section 33-C(2) of the I.D. Act. It also appears that the present society has taken the stand that there is no employer or employee relationship between the parties and the respondent was serving as honorary secretary and he was not staff member of the employee of the society. 16. It also appears that the respondent has examined himself on oath and has also produced documentary evidence where the society has not led any oral evidence nor any documentary evidence is placed on record. On the basis of the fact available and the evidence on record, the Labour Court has granted the prayer of the respondent and directed the petitioner – society to pay Rs.87,000/-. 17. On perusal of the impugned award, it appears that the Labour Court has heavily relied on the material printed on the front page of the report wherein the respondent has been shown as an employee of the society. Except that document, there is no other document on record to suggest that the respondent was employee of the society. On perusal of the oral evidence of the respondent herein, it appears that he has admitted that he was serving as secretary and he has already resigned from that post. The petitioner – society has also raised the claim of the respondent on the ground that the respondent was not a employee of the society. On perusal of the oral evidence of the respondent herein, it appears that he has admitted that he was serving as secretary and he has already resigned from that post. The petitioner – society has also raised the claim of the respondent on the ground that the respondent was not a employee of the society. At this stage, it is worthwhile to referred to Section 33-C(2) of the I.D. Act which reads as under:- “33-C (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 computed, 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]: Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.]” 18. On analysis of the aforesaid provisions, it is crystal clear found that this provision applies only in the case where there is pre-existing right available to the respondent. It is also well settled by the Apex Court in the very decisions that in recovery petition, the Labour Court is competent to interpret the award passed in the concerned matter and functioning of the Labour Court in such matter would like an Executing Court and the power of the Labour Court under Section 33-C(2) extends to interpretation of the award or settlement on which the respondent's right rests, like the Executing Court's power to interpret the decree for the purpose of execution, where the basis of the claim is referable to the award or settlement, but it does not extend to determination of the dispute of entitlement or the basis of the claim if there be no prior adjudication or recognition of the same by the employer. Further, the right to get benefits as alleged by the petitioner needs and prior existence. Admittedly, in this case, there is no prior adjudication upon claim made by the respondent herein. Further, the right to get benefits as alleged by the petitioner needs and prior existence. Admittedly, in this case, there is no prior adjudication upon claim made by the respondent herein. When there is no pre-adjudication of the right of the respondent earlier or there is genuine dispute regarding the same, raised by the employer, then, the jurisdiction of the Labour Court to entertain and decide the recovery application under Section 33-C(2) of the I.D. Act is not available. 19. Considering the factual as well as legal aspects of the present case, this Court is of the considered view that since there was no pre-existing right in existence as employer has already raised the dispute regarding entitlement of the respondent as to alleged salary of Rs.2000/- per month, the exercise taken by the Labour Court in entertaining and adjudicating the claim of the respondent in recovery application under Section 33-C(2) of the I.D. Act is erroneous on facts and law. Thus, when there is inherent lack of jurisdiction on the part of the Labour Court, under Article 227 of the Constitution of India, the High Court has power to interfere with such finding of facts as well as legal aspect. In the present case, it is crystal clear that the Labour Court has acted upon without any jurisdiction and has passed the impugned award which is not tenable in the eyes of law. 20. In view of the above discussions, the present petition deserves to be allowed and the impugned award passed by the Labour Court deserves to be set aside. 21. Accordingly, the present petition is allowed. The impugned award dated 09.10.2009 passed by the Labour Court, Vadodara in Recovery Application No.384 of 2002 is hereby quashed and set aside. The amount, if any, deposited by the petitioner – society be refunded to the petitioner – society, after due verification by the registry along with the interest accrued thereon, if any. Rule is made absolute to the aforesaid extent. 21. In view of the disposal of the main petition, the Misc. Civil Application No. 2/2018 stands disposed of accordingly.