Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 468 (GUJ)

Managing Director v. Meghjibhai Mohanbhai Sagar

2024-03-06

RAJENDRA M.SAREEN

body2024
JUDGMENT : 1. This petition is filed under Article 226 of the Constitution of India and under the provisions of Industrial Disputes Act and Rules made thereunder and also challenging the order passed below application u/s.33(C)(2) of the Industrial Disputes Act by the Labour Court, Amreli in Recovery Application no.111 of 1999 inter alia praying as under: “A. … … ... B. Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction holding and declaring that the impugned order dated 17th March, 2009 is violative of Articles 14 and 19(i)(g), without jurisdiction and authority in law, arbitrary, irrational, discriminatory, illegal and unreasonable; C. Your Lordships may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside impugned order dated 17th March, 2009 and further be pleased to hold that the respondent cannot file Recovery Application straight way under Section 33(C)(2) of ID Act without crystallizing his right either by award under Section 78 of BIR Act from Labour Court or by way of any settlement with the petitioner employer. D. … … … E. … … … F. … … ...” 2. The case of the petitioner is that the petitioner is a cooperative bank doing banking business on small scale and has been established and running under the provisions of the Bombay Industrial Relations Act, 1946. 2.1 As per the case of the petitioner, the respondent – employee was initially appointed on 29th July, 1966 as a Stenocum- Junior Officer in the petitioner bank. From time to time, he was given promotion and also given hike in salary as well as transfer in the branches of the petitioner bank. In the year 1980, the respondent challenged the transfer order by way of filing civil suit being Civil Suit no.106 of 1980, which was subsequently rejected on 23rd June, 1980 as the transfer was found as per the administrative policy of the petitioner bank and the respondent getting all the benefits as per the policy and his entitlement. In the year 1980, the respondent challenged the transfer order by way of filing civil suit being Civil Suit no.106 of 1980, which was subsequently rejected on 23rd June, 1980 as the transfer was found as per the administrative policy of the petitioner bank and the respondent getting all the benefits as per the policy and his entitlement. Since, the dismissal of the suit, the respondent became non-cooperative to the customers of the bank and also to the staff members, as a result, the bank received numerous complaints against the respondent from time to time regarding behaviour of the respondent with the customers, as well as with the other staff members and the respondent was also become irregular in service and used to remain absent. 2.2 On 25th March, 1998, the respondent was transferred from Amreli Branch to Dungar Branch and was relieved from the Amreli Branch and was directed to join Dungar Branch with immediate effect. The respondent, instead of joining duty at Dungar Branch, has challenged the said order dated 25th March, 1998 before the Labour Court by way of filing BIR Application no.2 of 1998. On 30th March, 1998, the Labour Court directed the petitioner bank not to change the condition of service of present respondent. Despite the order of the Labour Court, the respondent did not come to petitioner bank and did not join the services either at Amreli Branch or at Dungar Branch. During the interregnum period, the petitioner challenged the interim order of the Labour Court by way of writ petition being Special Civil Application no.2804 of 1998, which was subsequently withdrawn as the order was interim order. At the same time, the interim application was also decided to be heard along with the main petition by the Labour Court by the order dated 11th August, 1999. Against that order dated 11th August, 1999 the petitioner had preferred Revision Application no.1 of 2000 which was dismissed by the Industrial Tribunal as no final order was passed in BIR Application n.2 of 1998. 2.3 On 23rd March, 2009, the Labour Court finally adjudicated the dispute and also passed the award u/s.78 allowing the BIR Application no.2 of 1998 filed by the respondent. 2.3 On 23rd March, 2009, the Labour Court finally adjudicated the dispute and also passed the award u/s.78 allowing the BIR Application no.2 of 1998 filed by the respondent. Thereafter, the petitioner has preferred an appeal against the award of Labour Court u/s.78 of the BIR Act and the Tribunal has granted stay in favour of the petitioner against the execution and implementation of final order passed in BIR Application no.2 of 1998. 2.4 During the pendency, the respondent was also offered places where the post of Junior Officer was vacant and gave offer to resume the duty at any place, but the respondent did not attend the job either at Amreli Branch or Dungar Branch. Since, the respondent was not attending the job regularly, in the petitioner bank or at any of its branches, the petitioner bank on 28th September, 1999 wrote a letter to the respondent to appear before Executive Committee and give response as to why any action should not be taken against the respondent and on 26th November, 1999 the petitioner bank has terminated the respondent after following due process of law. Instead of challenging the order of termination in the Labour Court as per the provisions of Section 78 of the BIR Act, to adjudicate the dispute for alleged non-payment of salary, the respondent has approached the Labour Court straight way by filing recovery application under Section 33(C)(2) of the Industrial Disputes Act, bearing Recovery Application no.111 of 1999 without adjudicating the dispute of non-payment of salary from 1st January, 1999 till 26th November, 1999 and without crystallizing right in his favour about the past recovery of his dues on the basis of award. 2.5 The petitioner has also filed reply to the said application of the respondent contending that there is a jurisdictional error on the part of the Labour Court in entertaining the application as there being no award or settlement in favour of the respondent which can be executed. The Labour Court without considering the latest position of law and without considering the submissions of the petitioner and non-maintainability of the recovery application, has adjudicated the entire dispute and passed the award of recovery on 17th March, 2009, which is under challenge. 3. Heard Mr. Vasavda, learned advocate for the petitioner and Mrs.Nasrin N. Shaikh, learned advocate for the respondent no.1. 4. It is vehemently submitted by Mr. 3. Heard Mr. Vasavda, learned advocate for the petitioner and Mrs.Nasrin N. Shaikh, learned advocate for the respondent no.1. 4. It is vehemently submitted by Mr. Vasavda, learned advocate for the petitioner that the Labour Court in Recovery Application no.111 of 1999 had no power to adjudicate the dispute between the parties u/s. 78 of the BIR Act. It is also submitted that the proceedings u/s.33(C)(a), Recovery Application under the ID Act is Execution Petition. 4.1 It is also submitted that the Labour Court has failed to appreciate that in application filed u/s.33(C) of the I.D. Act, the Labour Court acts as an executing Court and that, therefore, it cannot decide any dispute and/or any disputed claim. 4.2 Mr. Vasavda, learned advocate for the petitioner further submitted that while exercising the jurisdiction u/s.33(C) of the I.D. Act, the Labour Court can entertain only existing right and adjudicate the claim. 4.3 It is also submitted that the Labour Court has failed to appreciate that the dispute between the petitioner and the respondent regarding whether the respondent would be entitled for wages for the period under question and that, therefore, in light of order of such competent authority, the Labour Court could not have entertained and decided the recovery application and could not have directed the petitioner to pay wages for the said period. 4.4 To support the said submission, Mr. Vasavda, learned advocate for the petitioner has relied upon the decision of Apex Court in case of Bombay Chemical Industries Vs. Deputy Labour Commissioner, reported in 2022(5) SCC 629 . He has also relied upon the decision of this Court in case of Shroff Engineering Ltd., Vs. Bharatbhai Ramabhai Solanki in Special Civil Application no.20104 of 2017 and allied matters, decided on 14th March, 2022. 4.5 The relevant observations of the Apex Court in case of Bombay Chemical Industries (supra) are as follows: “6. At the outset it is required to be noted that respondent No.2 herein filed an application before the Labour Court under Section 33(C)(2) of the Industrial Disputes Act, demanding difference of wages from 01.04.2006 to 31.03.2012. It was thus the case on behalf of respondent No.2 that he was working with the appellant as a salesman. However, the appellant had taken a categorical stand that respondent No.2 was never engaged by the appellant. It was thus the case on behalf of respondent No.2 that he was working with the appellant as a salesman. However, the appellant had taken a categorical stand that respondent No.2 was never engaged by the appellant. It was specifically the case on behalf of the appellant that respondent No.2 had never worked in the establishment in the post of salesman. Therefore, once there was a serious dispute that respondent No.2 had worked as an employee of the appellant and there was a very serious dispute raised by the appellant that respondent No.2 was not in employment as a salesman as claimed by respondent No.2, thereafter, it was not open for the Labour Court to entertain disputed questions and adjudicate upon the employer-employee relationship between the appellant and respondent No.2. As per the settled proposition of law, in an application under Section 33(C)(2) of the Industrial Disputes Act, the Labour Court has no jurisdiction and cannot adjudicate dispute of entitlement or the basis of the claim of workmen. It can only interpret the award or settlement on which the claim is based. As held by this Court in the case of Ganesh Razak and Anr. (supra), the labour Court’s jurisdiction under Section 33(C)(2) of the Industrial Disputes Act is like that of an executing court. As per the settled preposition of law without prior adjudication or recognition of the disputed claim of the workmen, proceedings for computation of the arrears of wages and/or difference of wages claimed by the workmen shall not be maintainable under Section 33(C)(2) of the Industrial Disputes Act. (See Municipal Corporation of Delhi Vs. Ganesh Razak and Anr. (1995) 1 SCC 235 ). In the case of Kankuben (supra), it is observed and held that 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 ID Act. It is further observed that the benefit sought to be enforced under Section 33C (2) of the ID Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. It is further observed that the benefit sought to be enforced under Section 33C (2) of the ID Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33C (2) of the ID Act while the latter does not. 7. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, when there was no prior adjudication on the issue whether respondent No.2 herein was in employment as a salesman as claimed by respondent No.2 herein and there was a serious dispute raised that respondent No.2 was never in employment as a salesman and the documents relied upon by respondent No.2 were seriously disputed by the appellant and it was the case on behalf of the appellant that those documents are forged and/or false, thereafter the Labour Court ought not to have proceeded further with the application under Section 33(C)(2) of the Industrial Disputes Act. The Labour Court ought to have relegated respondent No.2 to initiate appropriate proceedings by way of reference and get his right crystalized and/or adjudicate upon. Therefore, the order passed by the Labour Court was beyond the jurisdiction conferred under Section 33(C)(2) of the Industrial Disputes Act. The High Court has not appreciated the aforesaid facts and has confirmed the same without adverting to the scope and ambit of the jurisdiction of the Labour Court under Section 33(C)(2) of the Industrial Disputes Act.” 4.6 The relevant observations of this Court in case of Shroff Engineering Ltd. (supra) are as follows: “19. In the opinion of the Court, the petitioners were justified in challenging the version of the workman in its statement of claim more particularly when such challenge was made on the basis of the evidence placed before the Labour Court. 20. Therefore, in view of the aforesaid facts, in this case, it cannot be said that the claim made by the workman was pursuant to any adjudicatory process or based on any pre-existing right. 20. Therefore, in view of the aforesaid facts, in this case, it cannot be said that the claim made by the workman was pursuant to any adjudicatory process or based on any pre-existing right. In fact, with the challenge made by the petitioners to the claim, the Court is of the view that before deciding such claim, adjudicatory process as contemplated under Section-10 of the Industrial Disputes Act was essential. 21. Aforesaid discussion with regards to the evidence pertaining to in case of one of the workman is only to indicate that the dispute arose when the workman made claim under various head in his application purportedly under Section-33(C)(2) of the Industrial Disputes Act and when such claims were countered by the petitioner principal employer as well as contractor on factual background. 22. This Court in case of Gujarat Water Supply and Sewerage Board and another (supra), has held in Para-28 as under: “28. Section 33C(2) of the I.D. Act makes it clear that where any workman is entitled to receive any amount or benefit which is capable of being computed in terms of money from his employer 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 subject to any Rules made under the Act the Labour Court has to decide such question within a period of 3 months which period may be extended by the Labour Court for the reasons recorded in writing if it is expedient so to do. Thus, it is clear that first and fundamental requirement under Section 33C(2) of the I.D. Act is that the Recovery Application can only be entertained by the Labour Court only if it is found by the competent authority that the workman is entitled to receive money or any benefit which is capable of being computed in terms of money from his employer. Meaning thereby, there should be prior adjudication by the competent authority or the Court. Admittedly, in the instant case there was no adjudication either by the competent authority or by the Court. In the instant case, the workmen could have claimed overtime wage by lodging their claims before the Workmen's Compensation Commission under Section 20 of the Minimum Wages Act, who could have decided the dispute between the parties after holding the enquiry and giving them opportunity of hearing. In the instant case, the workmen could have claimed overtime wage by lodging their claims before the Workmen's Compensation Commission under Section 20 of the Minimum Wages Act, who could have decided the dispute between the parties after holding the enquiry and giving them opportunity of hearing. However, as per the proviso to Section 20 of the Minimum Wages Act the workman had to present such application within 6 months from the date on which the Minimum wages or other amount became payable. The authority had jurisdiction to entertain any Application filed after a period of limitation of 6 months provided sufficient cause was made out. Admittedly, in all these cases the claim of the workmen was time barred as they were claiming overtime wages in 1995 for the period commencing from 1989 to 1992, therefore, they have not availed remedy under the provisions of the Minimum Wages Act. Still, they could have approached the Labour Court by way of reference under Section 10 of the I.D. Act, by raising dispute regarding overtime. Instead of that they approached the Labour Court straightaway by filing Recovery Applications under Section 33C(2) of the I.D. Act, without prior adjudication of their claim.” 23. From the aforesaid, the Division Bench of this Court has held that the fundamental requirement under Section-33(C)(2) of the Industrial Disputes Act has to be preceded with the findings by the competent Authority about the entitlement by the workman to receive money or benefit, which is capable of being computed in terms of money. 24. In case of Brijpal Singh (supra), the Apex Court has held in Para-13 as under: “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 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 I.D. Act. 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 his 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. 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 33C(2) of the I.D. 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 33C(2) of the I.D. 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 C.M.W.P. No. 36406 of 1995 as illegal and uncalled for. We do so accordingly.” 25. In the latest pronouncement by the Apex Court in case of M/s. Bombay Chemical Industries (supra), the Apex Court has examined the scope and ambit of jurisdiction of Labour Court under Section-33(C)(2) of the Industrial Disputes Act. We do so accordingly.” 25. In the latest pronouncement by the Apex Court in case of M/s. Bombay Chemical Industries (supra), the Apex Court has examined the scope and ambit of jurisdiction of Labour Court under Section-33(C)(2) of the Industrial Disputes Act. It was a case before the Apex Court where an application was filed before the Labour Court under Section-33(C) (2) of the Industrial Disputes Act demanding the difference of wages for the period between 01-04-2006 to 31-03-2012, which claim was disputed by the employer by taking up a stand that workman was never engaged by the employer and had never worked in the establishment on the post of Salesman. After examining the facts, the Apex Court has held that it is a settled preposition of law in an application under Section-33(C)(2) of the Industrial Disputes Act, has no jurisdiction to adjudicate the dispute of entitlement or basis of the claim of workman and it can only interpret the award or settlement or which claim is based, while exercising jurisdiction under Section-33(C)(2) of the Industrial Disputes Act. In the facts of the case, the Apex Court has proceeded to held in Para-7 as under: “7. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, when there was no prior adjudication on the issue whether respondent No.2 herein was in employment as a salesman as claimed by respondent No.2 herein and there was a serious dispute raised that respondent No.2 was never in employment as a salesman and the documents relied upon by respondent No.2 were seriously disputed by the appellant and it was the case on behalf of the appellant that those documents are forged and/or false, thereafter the Labour Court ought not to have proceeded further with the application under Section 33(C)(2) of the Industrial Disputes Act. The Labour Court ought to have relegated respondent No.2 to initiate appropriate proceedings by way of reference and get his right crystalized and/or adjudicate upon. Therefore, the order passed by the Labour Court was beyond the jurisdiction conferred under Section 33(C)(2) of the Industrial Disputes Act. The High Court has not appreciated the aforesaid facts and has confirmed the same without adverting to the scope and ambit of the jurisdiction of the Labour Court under Section 33(C)(2) of the Industrial Disputes Act.” 26. Therefore, the order passed by the Labour Court was beyond the jurisdiction conferred under Section 33(C)(2) of the Industrial Disputes Act. The High Court has not appreciated the aforesaid facts and has confirmed the same without adverting to the scope and ambit of the jurisdiction of the Labour Court under Section 33(C)(2) of the Industrial Disputes Act.” 26. Judgment relied upon by the learned Advocate for the respondents in case of Pappu & another (supra), the Court was examining the fact where the appellants had claimed bonus for the year 1978-1979 at a particular rate of the wage, which was declared by the employer. Bonus was paid deducting 7 days wages paid for national and festival holidays. The Labour Court had entertained such application under Section-33(C) (2) of the Industrial Disputes Act, which was subject matter of challenge under Article-226, where the Single Judge of the Court had allowed the writ petition, holding that the dispute was raised by the Management as Industrial Disputes under Section-22 of the Payment of Bonus Act and therefore, matter could not be proceeded under Section33(C)(2) of the Industrial Disputes Act. The Division Bench had proceeded to hold that controversy before the Division Bench had raised two questions for determination as to whether Payment of Bonus Act excludes applicability of Section-33(C)(2) of the Industrial Disputes Act and whether bonus disputes are covered by Section-33(C)(2) of the Industrial Disputes Act. As the Court had proceeded to hold that the dispute regarding bonus was in a very narrow compass and in fact there was no dispute regarding the rate of bonus or applicability of Bonus Act to the Establishment and therefore, it was only an issue of computation and therefore, came to conclusion that application under Section-33(C) (2) of the Industrial Disputes Act could be maintained in the facts of that case.” 5. Per contra, Mrs. Nasrin N. Shaikh, learned advocate for the respondent no.1 in light of the affidavit-in-reply filed by the respondent workman has vehemently argued that the salary of the respondent workman has been ordered to be recovered. Salary is preexisting right, which has not been given by the petitioner though the respondent workman has worked in the petitioner bank. 5.1 Mrs. Nasrin N. Shaikh, learned advocate for the respondent no.1 in light of the affidavit-in-reply filed by the respondent workman has vehemently argued that the salary of the respondent workman has been ordered to be recovered. Salary is preexisting right, which has not been given by the petitioner though the respondent workman has worked in the petitioner bank. 5.1 Mrs. Shaikh, learned advocate for the respondent no.1 submitted that as per the provisions of Section 33C(2) of the Act, the salary is a preexisting right, which cannot be denied to and it is also submitted that the BIR Application no.2 of 1998 was decided in the year 2013. 5.2 It is also submitted that as per the affidavit-in-reply, there is no illegality committed by the Labour Court in deciding the preexisting right of the respondent granting the salary for the period he has worked in the bank. It is submitted that the BIR Application no.2 1998, wherein the transfer order was challenged by the respondent, had been decided by the Labour Court as partly allowed and thereafter, an appeal was filed by the bank and the matter was remanded back and subsequently it resulted into an order against the respondent. 5.3 To support her contention, Mrs. Shaikh, learned advocate for the respondent no.1 has relied upon the decision of this Court in case of Nizamuddin Suleman Vs. New Shorrock Spg. & Wvg. Mills Co. decided on 24th November, 1979 reported in (1979) 0 GLR 290. 5.4 The relevant paragraphs of the said judgment relied upon by the learned advocate for the respondent no.1, are as under :- 7. It must be pointed out that in Central Bank of India v. Rajagopalan, (supra), the case of the workman concerned was that besides attending to his routine duties as clerk, he had been operating the adding machine provided for use in the clearing department of the Branch during the period mentioned in the list annexed to the petition and it was alleged that as such, he was entitled to the payment of Rs. 10 per month as special allowance for operating the adding machine as provided for under paragraph 164(b) (1) of the Sastry Award. On this basis, each one of the respondents made his respective claim for the amount covered by the said allowance payable to him during the period specified in the calculations. 10 per month as special allowance for operating the adding machine as provided for under paragraph 164(b) (1) of the Sastry Award. On this basis, each one of the respondents made his respective claim for the amount covered by the said allowance payable to him during the period specified in the calculations. The employer disputed the workmen's claim and it was urged that the workmen could claim only non-monetary benefits under the Award that were capable of computation and so, S. 33C(2) was inapplicable to their claim. The Supreme Court in Central Bank of India v. Rajagopalan, went into the merits of the case ultimately and after considering the facts of the case and the question whether the workman concerned could be described as Comptists, that is, those who are working on the computing machine, or whether they were merely operators of adding machines, the Supreme Court remanded the proceedings to the Labour Court with a direction that it should allow the parties to amend the pleadings, if so desired, and give its decision in respect of the respective cases; but the Supreme Court held that it was open to the Labour Court to decide whether the workman before it who was basing his rights on a particular adjudication, namely, the Sastry Award, fell within the particular category for which special provision had been made in that adjudication. This order of the Supreme Court in Central Bank of India's case, therefore, illustrates that once the workman concerned bases his claim on an existing right, namely, on an adjudication, the question whether the workman falls with the award or the adjudication, is a matter which can be dealt with and should be dealt with by the Labour Court under S. 33C(2) But if the question arises whether the workman has been rightly or wrongly dismissed or whether the workman has been rightly or wrongly retrenched, the Labour Court cannot deal with that dispute under S. 33C(2). To put it briefly, so long as there is no dispute on the showing of the workman on the workman's application under S. 33C(2) that the relationship of employer and employee has not ceased to exist and the claim which the workman puts forward in his application under S. 33C(2) is based on an existing right, the application under S. 33C(2) is maintainable. 6. 6. In light of the above, Mrs.Shaikh, learned advocate for the respondent no.1 submitted that the present petition deserves rejection. 7. At this stage, Mr. Vasavda, learned advocate for the petitioner has also relied upon the observations made in para- 19 and 20 in the decision of Nizamuddin Suleman (supra), which reads thus: “19. We have held above that for the purposes of S. 33C(2), what matters is the case of the workman as set out in the application. In the instant case the workman was claiming his dues under an existing right, namely, that in view of the condition which he had written on the printed form, he was entitled to retrenchment compensation. He was not disputing the factum of retrenchment and in our view since the decision of the Division Bench of this Court in Ambalal Shivlal v. D. M. Vin must be deemed to have been overruled the decision of the Labour Court must be quashed and set aside. The matter will now go back to the Labour Court for deciding the application on merits bearing in mind the principles laid down by the Supreme Court in the cases referred to hereinabove and the principles which we have culled out from those decisions. 20. In Special Civil Application No. 936 of 1975 the case of the workman was that he was working in the respondent's factory since many years and was a permanent clerk and that the factory was closed from June 1, 1971 and he claimed closure compensation aggregating to Rs. 1,800 and the recovery certificate to enable him to recover the amount. In its written statement the respondent contended that the application was not legally tenable and various contentions were raised in the case. The Labour Court held on the preliminary objection that it had no jurisdiction to entertain the application on the ground was that the applicant had no existing right in so far as closure compensation was concerned. There was no finding so far as the petitioner workman was concerned on the issues that were raised and the Labour Court observed – "All these major issues cannot be decided by this Court because it has got limited jurisdiction under S. 33C(2) of the Act. There was no finding so far as the petitioner workman was concerned on the issues that were raised and the Labour Court observed – "All these major issues cannot be decided by this Court because it has got limited jurisdiction under S. 33C(2) of the Act. These major issues can be decided by way of Reference to the Industrial Tribunal as it is beyond the jurisdiction of the Court to decide all these industrial major disputes”. It is obvious that the question whether on the facts which the workman was urging in his application under S. 33C(2) the application under S. 33C(2) was maintainable or not has to be decided by the Labour Court. It is after examining the evidence on merits that the Labour Court could have decided whether there was a closure of the factory or not and whether the applicant left the job on his own accord as the employer contended. But merely because of the disputes raised by the respondent-employer some issues were required to be gone into for the purpose of granting relief to the workman, it could not be said that the application under S. 33C(2) was not maintainable. As we have observed above, mere denial of the right of the workman by the employer would not take away the jurisdiction of the Labour Court which it otherwise had. 8. In view of above, Mr. Vasavda, learned advocate for the petitioner submitted that the present petition may be allowed. 9. This Court has heard the learned advocates for the respective parties at length. 10. Upon hearing the submissions of both the learned advocates for the respective parties and considering the order of the Labour Court and in light of the judgment of Bombay Chemical Industries (Supra), it cannot be denied that the Labour Court’s jurisdiction u/s.33C(2) of the Act is like that of an Executing Court. It can only interpret award or settlement on which claim is based and without prior adjudication or recognition of disputed claim of workmen proceedings of computation of arrears of wages and/or difference of wages claimed by the workmen is not maintainable u/s.33C(2). It can only interpret award or settlement on which claim is based and without prior adjudication or recognition of disputed claim of workmen proceedings of computation of arrears of wages and/or difference of wages claimed by the workmen is not maintainable u/s.33C(2). In that case, it was a claim of the respondent no.2 workman that he was in employment of the company as a salesman which was seriously disputed and the documents relied upon him were alleged to be forged and false and without adjudication of this dispute, Labour Court passed the order u/s.33C(2). 11. The observation and the principle laid down is fully reliable and which cannot be denied. Considering the facts of the present case, here the Labour Court has decided and calculated the claim of the respondent workman to the effect of his pre-existing right i.e. salary from 1st January, 1999 till 26th November, 1999. 12. Here in this case, it is pertinent to note that the application, which was filed by the respondent workman was pertaining to his pre-existing right of the salary, which was not granted to him for the period from January, 1999 till November, 1999 though he has worked in the petitioner bank. As such salary is a right of every employee, which he is entitled as of right to get for his work and non-granting of the salary, which was not in form of any kind of allowances or overtime or which was disputed. The only point, which was raised by the bank was only regarding the period of salary from January, 1999 till November, 1999 where the workman has not worked or he has not served during that time and the Labour Court accordingly, based upon the evidence available and with regards to the calculation has decided the matter. 13. As per the submission of learned advocate for the respondent, the Labour Court was perfectly within its jurisdiction while passing the impugned order u/s.33C(2) of the Act as the workman was having pre-existing right of getting his salary in terms of the money, which cannot be disputed. 14. 13. As per the submission of learned advocate for the respondent, the Labour Court was perfectly within its jurisdiction while passing the impugned order u/s.33C(2) of the Act as the workman was having pre-existing right of getting his salary in terms of the money, which cannot be disputed. 14. Considering the judgment of the Labour Judge and the findings thereof, this Court is of the opinion that the dispute of the bank that the employee has not worked during that period is well been dealt with by the Labour Court in view of the evidence, which have been brought on record by both the parties. It is observed by the Labour Court in light of the evidence produced before the Court that the workman, who has transferred from the headquarter Amreli to Dungar Branch was under an order of stay from the Labour Court, regarding the order of non changing the service condition of the workman till 20th April, 1998. As such, when the workman was under an order of non-changing of his service condition, he was suppose to work at the headquarter and with the stay order, he has gone to the headquarter, but he was not allowed to work there. It is also on record that till December, 1998 he was paid the salary. In that event, if the workman was transferred in the month of March, 1998 and he has not worked at his transferred place or in the Amreli Headquarter under an order of competent Court for not changing the service condition, how can bank has granted salary upto December, 1998. 15. Here in this case, as per the case of the employer bank, the workman had not worked from January, 1999 till November, 1999 at the headquarter and as a result, he was not paid any salary. But, at the same time, it is also observed by the Labour Court and perusing the judgment, it appears that there are leave reports of the workman, which are admitted in evidence from Exhs.91 to 93 and Exhs.95 & 96, wherein it has been clearly made-out that a leave report vide Exh.96 dated 3rd April, 1999 has been sanctioned. But, at the same time, it is also observed by the Labour Court and perusing the judgment, it appears that there are leave reports of the workman, which are admitted in evidence from Exhs.91 to 93 and Exhs.95 & 96, wherein it has been clearly made-out that a leave report vide Exh.96 dated 3rd April, 1999 has been sanctioned. Under this circumstances, if the workman was not on his duty and worked, there was no question of sanctioning his leave, which clearly made-out a case of the employee that he was serving and in that event, he was entitled for his salary as of right. The findings of the Labour Court are totally in consonance with the evidence, which has been laid down before the Labour Court and elaborately discussed and in that view of the matter, it cannot be said that the salary, which the workman has asked was pre-computed in terms of money and in that view, it cannot be said that the claim made by the employee was pursuant to any adjudicatory process, but it was based on pre-existing right. 16. As discussed above, in case of M/s. Bombay Chemical Industries (supra), the Hon’ble Apex Court in paras 25 and 27 has held as under : 25. In the latest pronouncement by the Apex Court in case of M/s. Bombay Chemical Industries (supra), the Apex Court has examined the scope and ambit of jurisdiction of Labour Court under Section-33(C)(2) of the Industrial Disputes Act. It was a case before the Apex Court where an application was filed before the Labour Court under Section-33(C) (2) of the Industrial Disputes Act demanding the difference of wages for the period between 01-04-2006 to 31-03-2012, which claim was disputed by the employer by taking up a stand that workman was never engaged by the employer and had never worked in the establishment on the post of Salesman. After examining the facts, the Apex Court has held that it is a settled preposition of law in an application under Section-33(C)(2) of the Industrial Disputes Act, has no jurisdiction to adjudicate the dispute of entitlement or basis of the claim of workman and it can only interpret the award or settlement or which claim is based, while exercising jurisdiction under Section-33(C)(2) of the Industrial Disputes Act. In the facts of the case, the Apex Court has proceeded to held in Para-7 as under: “7. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, when there was no prior adjudication on the issue whether respondent No.2 herein was in employment as a salesman as claimed by respondent No.2 herein and there was a serious dispute raised that respondent No.2 was never in employment as a salesman and the documents relied upon by respondent No.2 were seriously disputed by the appellant and it was the case on behalf of the appellant that those documents are forged and/or false, thereafter the Labour Court ought not to have proceeded further with the application under Section 33(C)(2) of the Industrial Disputes Act. The Labour Court ought to have relegated respondent No.2 to initiate appropriate proceedings by way of reference and get his right crystalized and/or adjudicate upon. Therefore, the order passed by the Labour Court was beyond the jurisdiction conferred under Section 33(C)(2) of the Industrial Disputes Act. The High Court has not appreciated the aforesaid facts and has confirmed the same without adverting to the scope and ambit of the jurisdiction of the Labour Court under Section 33(C)(2) of the Industrial Disputes Act. 27. Aforesaid facts are quite different from the facts of the present case, where the claim of the workman was seriously challenged and such challenge was not for the sake of challenge, but was based on sound contention backed with sufficient evidence, at-least to the extent that the claim made by the workman could not be covered under the definition of pre-existing right or the settlement.” 17. From the aforesaid findings of the Labour Court and law laid down by the Hon’ble Apex Court in case of M/s. Bombay Chemical Industries (supra), the case of the respondent – employee can be differentiated from the facts of the case of M/s. Bombay Chemical Industries (supra) and the contention raised by the learned advocate for the respondent that salary of an employee is pre-existing right and it cannot be said that the Recovery Application filed u/s.33C(2) to adjudicate the pre-existing right of the employee is illegal. Therefore, based upon this aspect, no interference is required in the findings of the Labour Court. 18. Therefore, based upon this aspect, no interference is required in the findings of the Labour Court. 18. It is pertinent to note that during the pendency of the petition, the respondent workman, who was terminated from his service from 26th November, 1999 challenged the order of his termination before the Labour Court and the order was reversed and the employee was ordered to be reinstated along with backwages. It is also to be noted that the entire controversy regarding termination and the backwages has been decided upto the Hon’ble Apex Court and the workman is already retired and as per the record, it appears that the workman has been granted benefits except the salary under dispute in this case. 19. In this circumstances, when the workman is already retired and when the Hon’ble Apex Court has decided that the termination of workman is illegal and granted 100% backwages, therefore, the pre-existing right of the workman for the period from January, 1999 till November, 1999 cannot be withheld merely on a technical aspect that the Labour Court has no jurisdiction to decide the point of salary under Recovery Application u/s.33C(2) and as discussed above, this Court is of the opinion that it was a pre-existing right of the employee, which was unnecessarily disputed by the employer bank. At the same time, an objection that application u/s.33C(2) directly cannot be filed before the Labour Court as there is a dispute and it is to be adjudicated by the competent Court u/s.10 of the Act has not been urged before the Labour Court. 20. Moreover, as stated above, the findings and observations of the Labour Court based upon the evidence before the Labour Court has been dealt with convincingly and cogently, which cannot be interfered with. 21. In the result, the petition stands disposed of as dismissed. Rule discharged. The order dated 17th March, 2009 passed by the Labour Court, Amreli in Recovery Application no.111 of 1999 impugned in this petition, stands confirmed. The outstanding salary for the months of January, 1999 till 26th November, 1999 shall be paid by the petitioner bank to the respondent workman within the period of 30 days from the date of receipt of this order.