MUNICIPAL CORPORATION OF DELHIversusGANESH RAZAK AND ANR.

               MUNICIPAL CORPORATION OF DELHI                                   A
                                     v.
                     GANESH RAZAK AND ANR.

                           OCTOBER 20, 1994

  [J.S. VERMA, S.P. BHARUCHA AND K.S. PARIPOORNAN, JJ.]                         B

      Industrial Disputes Act 1947-Section 33C(2)-Proceedings under--
Daily-rated casual workers-Claim to be paid at same rate as regular workmen
-Disputed Claim-Whether proceedings u/s 33C(2) maintainable-Held,
No-Adjudication of dispute relating to entitlement-Not within the scope of C
proceedings u/s 33C(2).

       The respondents, all daily-rated/casual workers of the Mnnicipal
Corporation of Delhi, claimed that they were doing the same kind of work
as the regular employees and, therefore, they were required to he paid the
same pay as the regular employees on the principle of 'eqnal pay for eqnal      D
work'. On this basis, they claimed computation of the arrears of their
wages at the rate at which the wages were paid to the regular employees.
Their applications made to the Labour Court u/s 33C(2) of the Industrial
Disputes Act led to the award in their favou~. Writ Petitions filed challeng-
ing those awards had been dismissed. These appeals were filed by special        E
leave.

      The appellant challenged the maintainability of the workers' claim
in proceedings u/s 33C (2) of the Act on the. gronnd that the claim of
workmen to be paid at the same rate as the regular workmen being
disputed, proceedings u/s 33C(2) of the Act were not maintainable for           F
grant of the relief claimed. It was contended that the claim of the workmen
had neither been adjudicated nor recognized by the employer in any award
or settlement

      In this appeal, the question for the decision was whether without a       G
prior adjudication or recognition of the disputed claim of the workmen to
be paid at the same rate as the regular employees, proceedings for com-
putation of the arrears of wages claimed by them on that basis were
maintainable under Section 33C(2) of the Act

      Allowing the appeal, this Court                                           H
                                   617
    618                  SUPREME COURT REPORTS [1994) SUPP. 4 S.C.R.

A          HELD : 1.1. 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 33C(2) of the
    Industrial Dispntes Act, 1947. The Labour Court has no jurisdiction to
B   first decide the workmen's entitlement and then proceed to compute the
    benefit so adjndicated on that basis in exercise of Its power under Section
    33C(2) of the Act. It is only when the entitlement has been earlier adjudi·
    cated or recognised by the employer and thereafter for the purpose of
    implementation or enforcement thereof some ambiguity requires inter·
C   pretation that the interpretation is treated as incidental to the Labour
    Court's power under section 33C(2) like that of the Executing Court's
    power to interpret the decree for the purpose of its execution. (626-C·D]

        Central Bank of India Ltd. v. P.S. Rajagopalan etc., (1964] 3 SCR 140;
D Bombay Gas Company Ltd. v. Gopal Bhiva and Ors., (1964] 3 SCR 700;
  Chief Mining Engineer East India Coal Ltd. v. Rameswar and Ors., (1988] 1
  SCR 140 and Central Iniand Water Transport C01poration Ltd. v. The
  Workmen and Anr., (1975] 1 SCR 153, relied on.

         1.2. In the instant case, the claim of the respondent workmen who
E were all daily.rated/casual workers, to be paid wages at the same rate as
  the regular workers, had not been earlier settled by adjndication or
  recognition by the employer withont 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
F regular workmen on the principle of equal pay for equal work being
  disputed, without an adjudicatio;i of their dispute resulting in acceptance
  of their claim to this effect, there could be no occasion for compntation of
  the benefit on that basis to attract Section 33C(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
G 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 the some other
  workmen upholding a similar claim which could be relied on as an ad·
  judicatlon en~ring to the benefit of these respondents as well. The writ
H petitions by some other workmen to which some reference was casually
                        M.C.D. v. GANESH RAZAK                          619

made, particulars of which are not available in these matters, have, there- A
fore, no relevance for the present pu11-ose. 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 33C(2) of the Act by
these respondents. [626:F·H, 627-A]

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7138 of                 B
1994.

     From the Judgment and Order dated 26-11-1993 of the High Court
of Delhi at Delhi in C.W.P. No. 150/90

      G.B. Pai, P.P. Rao, Vivek Maheshwari, R.K. Maheshwari, K.B. Roh-         C
tagi (N.P.), Jitender Sharma, Ajay Kapoor, Rl'jiv Aggarwal, Ashok Aggar-
wal and R.S. Sodhi for the Appearing Parties.

        The following Order of the Court was delivered :

        J.S. VERMA, J. Leave granted.                                          D

      The common question for decision in these matters is the main-
tainability of the claim of respondents in proceedings under Section 33C{2)
of the Industrial Disputes Act, 1947 {hereinafter referred to as 'the Act'),
The respondents are all daily-rated/casual workers of the appellant-           E
Municipal Corporation of Delhi, who claim that they were doing the same
kind of work as the regular employees and, therefore, they were requir!'d
to be paid by the appellant the same pay as the regular employees on the
principle of 'equal pay for equal work'. On this basis, they claim computa-
tion of the arrears of their wages at the rate at which the wages are paid
to the regular employees, in accordance with Section 33C(2) of the Act.        F
Their applications made to the Labour Court under Section 33C{2) of the
Act led to the award in their favour, accepting this claim. Writ Petitions
were filed in the Delhi High Court by the appellant-Municipal Corporation
challenging those awards. The writ petitions having been dismissed, these
appeals arise by special leave.                                                G
      The appellant's challenge to .the maintainability of the respondents'
daim in proceedings under Section 33C{2) of the Act is on the ground that
the claim of workmen to be paid at the same rate as the regular workmen
being disputed, proceedings under Section 33C{2) of the Act were not
maintainable for grant of this relief. The Labour Court and, thereafer, the H
    620                   SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A   High Court !>ave rejected this CO!ltention. The same argument is reiterated
    before us in these appeals.

        It is clear that there has been no earlier adjudication by any forum
  of the claim 'Of these workmen of their entitlement to be paid wage at the
  same rate at which the regular workmen of the establishment are being
B paid and there is no award or settlement to that effect. In short, this claim
  of the workmen has neither been adjudicated nor recognised by the
  employer in any award or settlement. The real question therefore, is :
  Whether in these circumstances, without a prior adjudication or recogni-
  tion of the disputed claim of the workmen to be paid at the same rate as
C the regular employees, proceedings for computation of the arrears of wages
  claimed by them on that basis are maintainable under Section 33C(2) of
  the Act?

          In our 9pinion, the question for decision is no longer res integra being
    long settled by earlier decisions of this Court. Some of the decision5 have
D   been referred by the High Court in the impugned judgment, but the
    application of the settled principle made by the High Court is erroneous.
    We would refer to some of the decisions on this point and the submissions
    of learned counsel for the parties with reference to which these matters
    have to be decided.
E          Shri G.B. Pai, learned counsel for the appellant submitted that the
     proceedings Under Section 33C(2) of the Act are in the nature of execution
     proceedings which envisage a prior adjudication or recognition by the
     employer of the claim of the workmen to be paid wages at the rate at which
     they claim the computation; and when the basis of their claim is disputed,
F    the remedy under Section 33C(2) is not available to the workmen. Shri l'ai
     contended that in the present case, there was no earlier adjudi"'!tion or
     recognition of the workmen's claim to be paid at the same rate as the
     regular workmen and, therefore, the basis of computation being disputed,
     the proceedings under Section 33C(2) of the Act were not maintainable.
G    According to Shri Pa~ this is the settled position emerging from the
     decisions of this Court.

           On the other hand, Shri P.P. Rao, learned Counsel for the respon-
     dent-workmen submitted that there was really nc dispute of this kind since
     these daily rated/casual workmen were doing the same kind of work as the
H    regular workmen and, therefore, they were entitled to be paid wages at the
                            M.C.D. v. GANESH RAZAK                        621
     same rate as the regular workmen on the principle of 'equal pay for equal A
     work'. It was submitted that in certain writ petitions filed by some other
     workmen, it had been held that they were required to be paid at the same
     rate as the regular workmen and, therefore, it would not be open to the
     employer to raise such a dispute in the case of other workmen such as the
     present respondents . .According to Shri Rao, proceedings under Section B
     33C(2) of the Act were maintainable in these cases and the Labour Court
     as well was the High Court are right in taking that view. Shri Rao formu-
     lated his contention thus: the very dispute as to entitlement of the benefit
     claimed by the workmen as well/ as the computation thereof are within the
     scope of Section 33C(2) of the Act.
                                                                                c
             Reference may be made first to the Constitution Bench decision in
      The Central Bank of India Ltd. v. P.S. Rajagopalan etc., (1964] 3 SCR 140,
      on which Shri Rao Placed heavy reliance. That was a case in which the
      question of maintainability of proceedings under Section 33C(2) of the Act
      was considered in a claim made by the workmen on the basis of th.e Sastry D
      Award. The employer disputed the claim of the workmen on· several
      grounds including the applicability of Section 33C(2) of the Act. It was
      urged that since the applications involved a question of interpretation of
      the Sastry Award, they were outside the purview of Section 33C(2) be-
      cause interpretation of awards or settlements has been expressly provided
      for by Section 36A. This objection was rejected. This Court pointed out E
      the cliffeience in the scope of Section 36A and Section 33C(2) indicating
.1    that the distinction lies in the fact that section 36A is not concerned with
     the implementation or execution of the award whereas that is the sole
     purpose of Section 33C(2) and whereas Section 33C(2) deals with cases of
     implementation of individual rights of workmen falling under its provisions,
     Section 36A deals merely with a question of interpretation of the award F
     where a dispute arises in that behalf between the workmen and the
     employer and the appropriate Government is satisfied that the dispute
     deserves to be resolved by reference under Section 36A. In this context,
     this Court also indicated that the power of the Labour Court in a proceed-
     ing under Section 33C(2) being akin to that of the Executing Court, the G
     Labour Court is competent to interpret the award or settlement on which
     a workmen bases his claim under Section 33C(2) like the power of the
     Executing Court to interpret the decree for. the purpose of execution.
     Relevant extract from that decision is as.under :

                'Besides, there can be no .doubt that when the Labour Court H
    622                   SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A           is given the power to allow an individual workman to execute or
            implement his existing individual rights, it is virtually exercising
            exe~ution powers in some cases, and it is well settled that it is open
            to the Executing Court to interpret the decree for the purpose of
            execution. It is, of course, true that the executing Court cannot go
            \iehind the decree, nor can it add to or subtract from the provision
B           of the decree. These limitations apply also to the Labour Court;
            but like the executing Court, the Labour Court would also be
            competent to interpret the award or settlement on which a
            workmen bases his claim under s.33C(2). Therefore, we feel no
            difficulty in holding that for the purpose of making the necessary
c           determination under S.33C(2), it would, in appropriate cases, be
            open to the Labour Court to interpret the award or settlement on
            which the workmen's right rests."

                                                               (at page 154-155)

D
    This decision itself indicates that the power of the Labour Court under
    Section 33C(2) extends to interpretation of the award or settlement on
    which the workman'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 referrable to the award or settlement, but it does not extend to
E   determination of the dispute of entitlement or the basis of the claim if there
    is no prior adjudication or recognition of the •arne by the employer. This
    decision negatives instead of supporting the submission of learned counsel
    for the respbndents.

F         Another decision on the point is Bombay Gas Company Ltd. v. Gopal
    Bhiva & Ors., [1964] 3 SCR 700, wherein also Gajendragadkar, J., (as he
    then was) speaking for the Bench, referring to the above Constitution
    Bench decision, stated that the proceedings contemplated by Section
    33C(2) are analogous to execution proceedings and the Labour Court, like
    the Executing Court in the execution proceedings governed by the Code
G   of Civil Procedure, would be competent to interpret the award on which
    the claim is based. It is obvious that the power of the Executing Court is
    only to implement the adjudication already made by a decree and not to
    adjudicate a disputed claim which requires adjudication for its enforce-
    ment in the form of decree. The Executing Court, after the decree has been
H   passed, is hpwever competent to interpret the decree for the purpose of.
                       M.C.D. v. GANESH RAZAK                            623

its implementation. This position was settled by the above Constitution A
Bench decision and has been the consistent view of this Court ever since
then.

       Next case on this point is Chief Mining Engineer East India Coal Co.
Ltd. v. Rameshwcr and Ors., [1988] 1 SCR 140 wherein the above decisions
were relied on. It was held that the right to the benefit which is sought to    B
be computed under Section 33C(2) must be 'an existing one, that is to say,
already adjudicated upon or provideu for'. The propositions on the ques-
tion as to the scope of Section 33C(2) deducible from the earlier decisions
of this Court were summarised and they include the following, namely.

            "(i) The legislative history indicates that the legislature, after
                                                                                c
        providing broadly for the investigation and settlement of disputes
        on the basis of collective bargaining, recognised the need of in-
        dividual workmen of a speedy remedy to enforce their existing ·
        individual rights and therefore inserted s.33A in 1950 and s.33C in
        1956. These two sections illustrate cases in which individual D
        workmen can enforce their rights without having to take recourse
        to s.10(1) and without having to depend on their union to espouse
        their case.

            xxx                         xxx                        xxx
                                                                                E
            (3) Section 33C which is in terms similar to those in s.20 of the
        Industrial disputes (Appellate Tribunal) Act, 1950 is a provision
        in the nature of an executing provision.

            xxx                         xxx                        xxx          F
           (5) Section 33C(2) takes within its purview cases of workmen
        who claim that the benefit to which they are entitled should be
        computed in terms of money even though the right to the benefit
        on which their claim is based is disputed by their employers. It is
        open to the Labour Court to interpret the award or settlement on        G
        which the workmen's right rests.

            xxx                         xxx                        xxx

           (7) Though the court did not indicate which cases other than
        those under sub-section (I) would fall under sub-section (2), it        H
    624                   SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A            pointed out illustrative cases which would not fall under sub-sec-
             tion (2), viz., cases which would appropriately be adjudicated
             under s.10(1) or claims which have already been the subject-mater
             of settlement to which ss. 18 and 19 would apply.

                 {8) Since proceedings under s.33{2) are analogous to execution
B            proceedings and the Labour Court called upon to compute in
             tetms of money the benefit claimed by a workmen is in such cases
             in the positiDn of an executing court, the Labour Court like the
             executing court in execution proceedings governed by the Code of
             Civil Procedure, is competent under s.33C(2) to interpret the
c            award or settlement where the benefit is claimed under such award
             or settlement and it would be open to it to consider the plea of
             nullity where the award is made without jurisdiction.'

                                                              (at pages 142-144)

D , After stating the propositions, the decision proceeds to state as under:-
                 "It is clear that the right to the benefit which is sought to be
             computed must be an existing one, that is to say, already adjudi-
             cated upon or provided for and must arise in the course of and in
             relation to the relationship between an industrial workman and his
E
             en;tployer .......... "

                                                                   (at page 144)

           In Central Inland Water Transport Co1]Joration Ltd. v. The Workmen
p   &Anr., [1975] 1SCR153, it was held with reference to the earlier decisions
    that a proceeding under Section 33C{2) being in the nature of an execution
    proceeding, it would appear that an investigation of the alleged right of
    reemployment is outside its scope and the Labour Court exercising power
    under Section 33C{2) of the Act cannot arrogate to itself the functions of
G   adjudication of the dispute relating to the claim of re-enployment. Distinc-
    tion between proceedings in a suit and execution proceedings thereafter
    was pointed out. It was indicated that the plaintiff's right to relief against
    the defendant involves an investigation which can be done only in a suit
    and once the defendant's liability had been adjudicated in the suit, the
    working out of such liability with a view to give relief is the function of an
H   execution ,proceeding. This distinction is clearly brought out in that
                      M.C.D. v. GANESH RAZAK                           625
decision as under :                                                          A

            "In a suit, a claim for relief made by the plaintiff against the
        defendant involves an investigation directed to the determination
        of (i) the plaintiffs right to relief; (ii) the corresponding liability
        of the defendant, including, whether the defendant is, at all, liable B
        or not; and (iii) the extent of the defendant's liability, if any. The
        working out of such liability with a view to give relief is generally
        regarded as the function of an execution proceeding. Determina-
        tion No. (iii) referred to above, that is to say, the extent of the
        defendant's liability may sometimes be left over for determination
        in execution proceedings. But that is not the case with the deter- C
        minations under (i) and (ii). They are normally regarded as the
        functions of a suit and not an .execution proceeding. Since a
        proceeding under section 33C(2)''is in the nature of an execution
        proceeding it should follow that an investigation of the nature of
        determinations (i) and (ii) above is, normally, outside its scope, it D
        is true that in a proceeding under section 33 (C) (2), as in an
        execution proceeding, it may be necessary to determine the identity
        of the person by whom or against whom the claim is made if there
        is a challenge on that scope. But that is merely 'incidental'. To call
        determinations (i) and (ii) 'incidnental' to an execution proceeding
        would be a perversion, because execution proceedings in which E
        the extent of liability is worked out are just consequential upon the
        determinations (i) and (ii) and represent the last stage in a process
        leading to final relief. Therefore, when a claim is made before the
        Labour Court under section 33(C) (2) that court must clearly
        understand the limitations under which it is to function. It cannot F
        arrogate to itself the functions - say of an industrial Tribunal which
        alone is entitled to make adjudications in the nature of determina-
        tions (i) and (ii) referred to above, or proceeded to compute the
        benefit by during the former as 'incidental' to its main business of
        computation. In such cases, determinations (i)and (ii) are not
        'incidental' to the computation. The computation itself is conse- G
        quential upon and subsidiary to determinations (i) and (ii) as the
        last stage in the process which commenced with a reference to the
        industrial Tribunal. It was, therefore, held in State Bank of Bikaner
        and Jaipur v. R.L. Khande/wa/, (1968) L.L.J. 589, that a workman
        cannot put forward a claim in an application under section 33C(2) H
    626                   SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.

A           in respect of a matter which is not based on an existing right and
            which can be appropriately the subject-matter of an industrial
            dispute which requires a reference under section 10 of the Act."

                                                                   (at page 159)

B
          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 ~ery basis of the claim or the entitlement.of the workmen to a
    certain benefit is disputed, there being no earlier adjudication or recogni-
    tion thereof by the employer, the dispute relating to entitlement is not
c   incidental to the benefit claimed and is, therefore, clearly outside the scope
    of a proceeding under Section 33C(2) of the Act. The Labour Court has
    no jurisdiction to first decede the workmen's entitlement and then proceed
    to compute the benefit so adjudicated on that basis in exercise of its power
    under Section 33C(2) of the Act. It is only when the entitlement has been
D   earlier adjudicated or recognised by the employer and thereafter for the
    purpose of implementation or enforcement thereof some ambiguity re-
    quires interpretation that the interpretation is treated as incidental to the
    Labour Court's power under Section 33C(2) like that of the Executing
    Court's power to interpret the decree for the purpose of its execution.

E          In tJ:\ese 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
F   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 33C(2). The mere fact that some other workmen
    are alleged to have made a similar claim by filing writ petitions under
G   Article 32 of the Constitution is indicative of the need for adjudication of
    the claim pf entitlement to the benefit before computation of such a benefit
    could be sought. Respondent's claim is not based on a prior adjudication
    made in the writ petitions filed by some other workmen upholding a similar
    claim whii::h could be relied on as an adjudication enuring to the benefit
H   of these respondents as well. The writ petitions by some other workmen to
                      M.C.D. v. GANESH RAZAK                       627

which some .reference was casually made, particulars of which are not A
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 application made
under section 33C(2) of the Act by these respondents.

     Consequently, these appeals are allowed. The judgments of the High   B
Court as well as the award made by the Labour Court in favour of the
respondents are set aside. No costs.

A.G.                                                  Appeals allowed.