K.S. JHAVERI, J.

1. Rule. With the consent of learned counsel for the parties, the matter is taken up for final hearing. By way of this petition, the petitioner has challenged the judgment and order dated 28.8.2000 passed by the Labour Court, Surat, in Recovery Application No. 1174 of 1998 preferred by the employee whereby the Labour Court has passed order for recovery of Rs. 4,03,488/- break of which as under:-

(A)	AS PER JUDGMENT OF T. APPLICATION NO. 345 OF 1990
(B)	AS PER JUDGMENT OF NON-FATAL APPLICATION NO. 16A OF 1990
(C)	TOTAL A+B (3,32,350.00+71,138.00) = Rs. 4,03,488.00

1.1 The petitioner has also challenged the judgment and order dated 30.4.2001 and summons dated 17.8.2002.

2. Learned counsel for the petitioner, Mr. Clerk contended that in view of the decision of the Hon'ble Supreme Court in the case of Central Inland Water Transport Corporation Limited vs. The Workmen and Another, (1974) 4 SCC 696 particularly at page 697, paragraph Nos. 11 to 16, the Recovery Application is without jurisdiction. It was held in the said paragraphs thus:

It is well settled that proceedings u/s 33C(2) are in the nature of execution proceedings and, therefore, this does not involve a right of plaintiff to relief and the corresponding liability of the defendant i.e. whether the defendant is at all liable or not. These two functions are normally regarded as functions of a suit and not of execution proceedings. To call determination of such points as incidental to execution proceedings will be a perversion. So when a claim is made before the Labour Court u/s 33C(2) that Court must clearly understand the limitations under which it is to function. It cannot arrogate to itself the functions-say of an Industrial Tribunal which alone is entitled to make such adjudications. The workmen cannot put forward a claim in an application u/s 33C(2) in respect of a matter not based on an existing right.

2.1 Learned counsel for the petitioner further contended that in view of the decision of the Hon'ble Supreme Court in the case of Municipal Corporation of Delhi vs. Ganesh Razak and Another, (1995) 1 SCC 235, particularly, paragraph Nos. 12 and 8, the application u/s 33C(2) of the Industrial Disputes Act, is not maintainable. It was held in the said paragraph as under:

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 u/s 33C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen's entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power u/s 33C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognized by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court's power u/s 33C(2) like that of the Executing Court's power to interpret the decree for the purpose of its execution. The power of the Labour Court u/s 33C(2) extends to interpretation of the award or settlement on which the workman's right rests.

2.2 Learned counsel for the petitioner has further relied on the decision of the Hon'ble Supreme Court in the case of State of Punjab vs. Labour Court Jullunder and Others, (1980) 1 SCC 4, particularly, paragraph Nos. 7 and 8 and submitted that the claim of fatal case is not maintainable. Paragraph Nos. 7 and 8 at page 1981, of the said judgment read as under:

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