U.P. STATE ROAD TRANSPORT CORPORATIONversusSHRJ BIRENDRA BHANDARI

 A                  U.P. STATE ROAD TRANSPORT CORPORATION
                                        v.
                             SHRJ BIRENDRA BHANDARI

                                  '.JEPTEMBER 28, 2006

B             [ARJJITPA9'AYAT ANDLOKESHWARSINGHPANTA,JJ.]


            Industrial Disputes Act, 1947-Section 33C(2)-Claim filed under
     S.33C(2) for arrears of salary arising out of recommendations of Pay
C    Commission-Allowed by Labour Court-Upheld by High Court-On appeal,
     Held: High Court erred in upholding the order passed by Labour Court as
     scope and ambit of S.33C(2) was not properly appreciated by the Labour
     Court.

           Respondent filed claim petition under Section 33C(2) of the Industrial
D    Disputes Act, 1947 for payment of arrears arising out of implementation of
     the recommendations of the 5th Pay Commission. Labour Court accepted the
     prayer and directed payment. High Court upheld the order passed by the
     Labour Court.

           In appeal to this Court, the appellant contended that the application in
E terms of Section 33C(2) of the Act was misconceived and that the High Court
     wrongly took the view that the recommendations of 5th Pay Commission are
     binding on the appellant-Corporation and dues are payable.

           Allowing the appeal, the Court

F          HELD: 1.1. 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 the employer and is denied of such
     benefit, he can approach Labour Court under Section 33 C(2) of the Act. The
     benefit sought to be enforced under Section 33 C(2) of the Act is necessarily
G    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 33 C(2)
     of the Act while the latter does not. (692-H; 693-A-BI

H                                         690
      U.P. STATEROADTRANSPORTCORPN. '" BIRENDRA BHANDARI [PASAYAT,J.)      691

       1.2. When a question arises as to the adjudication of a claim for back     A
wages, all relevant circumstances which will have to be gone into, are to be
considered in a judicious manner. Therefore, the appropriate forum wherein
such question of back wages could be decided is only in a proceeding to whom
a reference under Section 10 of the Act is made. To state that merely upon
reinstatement, a workman would be entitled, under the terms of award, to all      B
his arrears of pay and allowances would be incorrect because several factors
will have to be considered, to find out whether the workman is entitled to back
wages at all and to what extent.1693-C-E)

     1.3. Judged in the background of principles set out above, the orders
passed by the Labour Court and the High Court are indefensible and are            C
accordingly set aside. 1693-F)

     State Bank of India v. Ram Chandra Dubey & Ors., 12001) 1 SCC 73
and State of U.P. and Anr. v. Brijpal Singh, (2005) 8 SCC 58, relied on.

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4292 of2006.                D
      From the Final Judgment and Order dated 24. l 0.2005 of the High Court
of Uttaranchal at Nainiti:l in Writ Petition No. 4961 of 200 l(S/S).

      Pradeep Misra for the Appellant

      The Judgment of the Court was delivered by                                  E

      ARIJIT PASAYAT. J. Leave granted.

      Appellant calls in question legality of the judgment rendered by a
Learned Single Judge dismissing writ petition filed by it. Appellant had filed
writ petition with the prayer to quash the order passed by the Presiding          F
Officer, Labour Court, Dehradun in Misc. Case No. 144 of2001.

      Background facts in a nutshell are as follows:

      A claim petition was filed by the respondent No.2 purported to be under
Section 33 C(2) of the Industrial Disputes Act, 1947 (in short the 'Act') for G
payment of arrears relating to difference of salary, leave encashment, arrears
of dearness allowance arising out of implementation of the recommendations
of the 5th Pay Commission, The Labour Court accepted the prayer and
directed payment within a period of two months. Said order was challenged
before the High Court by a writ petition.                                      H
    692                    SUPREME COURT REPORTS [2006) SUPP. 6 S.C.R.

A          Stand of the appellant before the High Court was that the application
    in tenns of Section 33 C(2) was misconceived. The High Court took the view
    that the recommendations of 5tt. Pay Commission are binding on the appellant-
    corporation and, therefore, dues are payable.

          Learned counsel for the appellant submitted that the scope and ambit
B   of Section 32 C{2) of the Act has been lost sight of by the Labour Court and
    the High Court was clearly in error in dismissing the writ petition and in
    upholding the order passed by the Labour Court.

          There is no appearance on behalf of the respondent in spite of service
    of notice.
c
           The benefit which can be enforced under Section 33 C(2) is a pre-
    existing benefit or one flowing from a pre-existing right.

        In the case of State Bank of India v. Ram Chandra Dubey & Ors.,
D [200 I] I sec 73, this Court held as under:
           "7. When a reference is made to an Industrial Tribunal to adjudicate
           the question not only as to whether the termination of a workman is
           justified or not but to grant appropriate relief, it would consist of .
           examination of the question whether the reinstatement. should be with
           full or partial back wages or none. Such a question is one of fact
E          depending upon the evidence to be produced before the Tribunal. If
           after the tenn ination of the employment, the workman is gainfully
           employed elsewhere it is one of the factors to be considered in
           detennining whether or not reinstatement should be with full back
           wages or with continuity of employment. Such questions can be
F          appropriately examined only in a reference. When a reference is made
           under Section I0 of the Act, all incidental questions arising thereto
           can be determined by the Tribunal and in this particular case, a
           specific question has been referred to tfie Tribunal as to the nature
           of relief to be granted to the workmen.

G          8. The principles enunciated in the decisions referred by either side
           can be summed up as follows:

               Whenever a workman is entitled to receive from his employer any
           money or any benefit which is capable of being computed in tenns of
           money and which he is entitled to receive from his employer and is
H          denied of such benefit can approach Labour Court under Section 33
     U.P. STATEROADTRANSPORT.CORPN. v. BIRENDRABHANDARI[PASAYAT,J.]      693
         C(2) of the Act. The benefit sought to be enforced under Section 33 A
         C(2) of the 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 33 C(2) of the Act B
         while the latter does not. It cannot be spelt out from the award in the
         present case that such a right or benefit has accrued to the workman
         as the specific question of the relief granted is confined only to the
         reinstatement without stating anything more as to the back wages.
         Hence that relief must be deemed to have been denied, for what is '
         claimed but not granted necessarily gets denied in judicial or quasi- C
         judicial proceeding. Further .when a question arises as to the
         adjudication of a claim for back wages all relevant circumstances
         which will have to be gone into, are to be considered in a judicious
         manner. Therefore, the appropriate forum wherein such question of
         back wages could be decided is only in a proceeding to whom, a
          reference under Section 10 of the Act is made. To state that merely D
          upon reinstatement, a workman would be entitled, under the terms of
          award, to all his arrears of pay and allowances would be incorrect
          because several factors will have to be considered, as stated earlier,
          to find out whether the workman is entitled to back wages at all and
          to what extent. Therefore, we are of the view that the High Court E
          ought not to have presumed that the award of the Labour Court for
          grant of back wages is implied in the relief of reinstatement or that the
          award of reinstatement itself conferred right for claim of back wages."

      The position was re-iterated by a. three-Judge Bench of this Court in
State of U.P. and Anr. v. Brijpal Singh, [2005) 8 SCC 58.                        F
      Judged in the background of principles set out above, the orders passed
by the Labour Court and the High Court are indefensible and are accordingly
set aside.

      The appeal is allowed but without any order as to costs.                  G
B.B.B.                                                        Appeal allowed.