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TMI Blog1952 (6) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal upheld the decision of the Industrial Tribunal. (2) A very able argument has been advanced before us by Mr. Phadke as to the scope and extent of the inquiry contemplated by Section 33A before the Labour Appellate Tribunal. Section 33 of the Act prohibits an employer from altering to the prejudice of the workmen concerned in any pending dispute the conditions of service applicable to them immediately before the commencement of such proceeding, and also prohibits him from discharging or punishing, whether by dismissal or otherwise any workman concerned in such dispute; and it is common ground that the petitioner was concerned in the pending dispute before the Tribunal. Now, this prohibition is not absolute. It would be open to the employer to alter the conditions of the workmen to their prejudice or even discharge or punish them if he obtained the express permission in writing of the conciliation officer, Board or Tribunal. If he did not obtain such a sanction and he acted to the prejudice of the workmen, a penalty is provided under Section 31 and the penalty is that any employer who contravenes the provisions of Section 33 shall be punishable with imprisonment for a term wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal to go into the merits of the change made by the employer to the prejudice of the workman. Therefore, according to Mr. Phadke the Tribunal acted without jurisdiction when it adjudicated upon the question as to whether the employer was justified in discharging the petitioner. (3) Now, it is necessary to consider what the law was before Section 33A was incorporated into the Industrial Disputes Act. That section was incorporated by Act 48 of 1950 and before that incorporation Section 33 was the only section dealing with a change made by the employer pending a reference, tinder the old ]aw, if an employer changed the conditions of service of a workman to his prejudice or discharged him, the workman had no remedy available to him. A reference undoubtedly could bo made to the Tribunal, but that reference could only be made by Government. The workman might move the Government to make the reference, but it was left to the discretion of the Government whether to make the reference or not. Therefore, under the old law, although the employer was liable to be punished for a contravention of Section 33 the workman had no remedy in himself to move the Tribunal to adjudicate upon what the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est the headnote is intended to indicate the drift of the section. (5) It has been argued with considerable force by Mr. Phadke that if the petitioner has been discharged in contravention of Section 33, the discharge is illegal and an illegal discharge can never be justified and upheld by the Tribunal. Mr. Phadke further contends that it is not open to an employer to urge the propriety of his action in discharging his workman if his act is prohibited by law. Put in that form the argument seems difficult to meet. But when one closely analyses that argument, it is clear that it is not tenable. The functions of the Tribunal acting under Section 33A in adjudicating upon the dispute and the functions of a criminal Court considering the violation of Section 33 are different and the two tribunals approach the matter from entirely different aspects. A criminal tribunal trying the employer who is prosecuted for violating Section 33 would confine itself to the sole question as to whether there was a breach of the law. If there was a breach of the law, the tribunal would have to proceed to inflict the punishment provided by Section 31. The Industrial Tribunal's functions are different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejudice, without taking the sanction of the Tribunal. The answer to this is two-fold. In the first place, the employer would run the risk of being prosecuted. In the second case, it is difficult to understand why an employer, who could get the sanction of the Tribunal if his action could ultimately be justified at the hearing, would not do so and would, without any reason whatsoever, indulge in violating the law as laid down in Section 33. There is one possible prejudice of which we are conscious and the possible prejudice is that if the employer were to ask for sanction of the Tribunal before taking action, the Tribunal would have to hear the matter, and it is only after the Tribunal has given its decision that the employer could act as he intended to act. In this very case, if the Surat Municipal Borough had applied to the Tribunal for sanction for dismissing or discharging the petitioner, the Municipal Borough could not have discharged him till after the permission had been granted. In other words, the discharge of tile petitioner would have been postponed for some time and during that period he would have earned his salary. But even this prejudice can be obviated by the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whose conditions of service he has altered to his prejudice. It is also difficult to understand why the Tribunal cannot exercise the same jurisdiction when a complaint is made by the workman, when the Tribunal admittedly could go into the same question if the employer had asked for the necessary pel-mission: under Section 33. Therefore, in our opinion, both the Industrial Tribunal and the Labour Appellate Tribunal were right when they took the view that they had jurisdiction to go into the merits of the dispute between the employer his workmen. (8) Mr. Phadke has then attempted to argue that on merits both the Tribunals below were in error in holding that the employer was justified in discharging the workman. It is clear that on this petition we are only concerned with the jurisdiction of the Tribunal. If the Tribunal had jurisdiction, then any decision it arrived at with jurisdiction could not be challenged by a writ. What is suggested by Mr. Phadke is that there is an error of law apparent on the face of the record. It seems that the Surat Municipal Borough acted under Rule 17(4) which had been framed under Section 58 of the Municipal Boroughs Act in discharging the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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