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TMI Blog2002 (9) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... hat had existed during the previous five/six years. The petitioners lodged their protest in terms of the letter dated 5.5.1992 which failed to bring about the desired remedy. The sequel was that the Petitioners filed a complaint under Section 33A of the I D Act in which their complaint, inter alia, was that while giving 16 (sic. 16%) bonus to most of the workmen, the petitioners were only given 8% bonus; while the colleagues were given weekly off days, this was denied to the petitioners; that the petitioners were not paid the same wages as their colleagues. It does not appear that the Petitioners' cause was espoused by the Labour Union despite the self-serving statement in the writ petition to the effect that the petitioners became active members of the Indian Express Employees Union which fact was allegedly not liked by the Management. It is the petitioners' case that their services were terminated in May 1993. Thereupon, the second salvo of a complaint under Section 33A, in substantially identical language but seeking the relief of their reinstatement with full back wages, was filed by the petitioners in November 1993. These pleadings have been controverter by the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nagements in such a manner as to defeat the protection sought to be imparted by the ID Act, Parliament again stepped in to alleviate the plight of the workmen, in the terms of the Contract Labour (Regulation and Abolition), Act 1970. There is yet another restraint placed on the capacity of the Management to terminate the services of a workman, incorporated in Section 33(2)(b) of the ID Act. It is however conditional, and intended to plug any unfair labour practice that may be adopted to subjugate the labour already embroiled in an industrial dispute. 4. I have deliberately twice mentioned the factum of the non-espousal of the Petitioner's complaints, for a reason. Section 2A was inserted into the ID Act by the Industrial Disputes (Amendment) Act, 1965 (35 of 1965) with the following stated object:- In construing the scope of the industrial dispute, Courts have taken the view that a dispute between an employer and an individual workman cannot per se be an industrial dispute, but it may become one if it is taken up by a union or a number of workmen making a common cause with the aggrieved individual workman. In view of this, cases of individual dismissals and discharges cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... get of the Management. This very reason would hold for the entire labour force during the continuance of general demands although with reduced vigour. No purpose would be served in protecting the labour leaders if the persons who they represent and lead are not around because their services have been terminated by the Management. In respect of the parameters of insulation of protected workmen from possible victimization, i.e. Section 33(3) and (4) and Rule 61, the following principles can be distilled from the legal provisions. (A) To qualify for special protection the person should belong to a registered Organization/union connected with the establishment. This is to obviate and eradicate the propping-up of a puppet body by the Management. [Explanation to Section 33(3) and Rule 61(1)]. (B) The person concerned must also be a member of the executive or an officer bearer of such registered union [explanation of Section 33(3)]. (C) The Union must not only be a registered one, but should also be recognised as an entity connected with the establishment in accordance with rules made in this behalf. This stipulation in actual effect is 'management friendly' since outside or uncon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred for the decision of any Regional or Assistant Labour Commissioner (Central) or any other Officer to whom these powers are delegated. (I) A dispute cannot obviously exist if the employer does not raise any objection within the stipulated period of fifteen days from the receipt of the names forwarded by the concerned union. A dispute cannot also conceivably exist if there is only one registered trade union and the persons nominated by it do not exceed the maximum number except in the event that some or any of these nominees is/are not employee(s) of the establishment. However, if the Management has recorded its objections to the proposed names, the list would not be binding on the Management. Reference to the pronouncements of the Hon'ble Supreme Court in P.H. Kalyani v. Air France, Calcutta, (1963)ILLJ679SC , would be of advantage. (J) The 'dispute' cannot partake of a general character and include an issue extraneous to the representative character of the nominee for protected workmen status. The management may not want to recognize a virulent, aggressive or 'troublesome' trade-unionist, but if all the concomitant mentioned above are present, it does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Notwithstanding anything contained in Sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute- (a) by altering, to the prejudice of such protected workman, the conditions of service applicable to commencement of such proceedings; or (b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. Explanation:- For the purposes of this sub-section, a protected workman , in relation to an establishment, means a workman who, being [a member of the executive or other officer bearer] of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf. (4) In every establishment, the number of workmen to be recognised as protected workmen for the purposes of Sub-section (3) shall be one per cent of the total number of workmen employed therein subject to a maximum number of five protected workman and a maximum number of one hundred protected workmen and for the aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Mr. Joshi has argued that the proviso operates only in respect of Section 33(2)(b) of the Act and that in the judgments of the Hon'ble Supreme Court it is invariably mentioned so. As far as the latter point is concerned, it is not that the Apex Court, while suing the phrase 'proviso to Sub-section 33(2)(b)' intended to state the proviso was not of Section 33(2)(a) as well. If these cases are adverted to, it would be found that only Section 33(2)(b) was in discussion. Mr. Joshi has also pointed out that a semi-colon has been used after Sub-clause (a) and a colon between Sub-clause (b) and the proviso. All that can be inferred from a semi-colon is the intention to segregate two substantially similar topics from each other. If the said punctuation mark is not employed, a part of the foregoing words would have to be repeated once again or in the same context would have to be reiterated. In this case it would be the words preceding Sub-clause (a), which quite apparently have not been repeated before Sub-clause (b) in order to avoid clumsiness and prolixity. If the proviso was not to operate on the first sub-section it should have ended with a full stop and not a semi-co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emands collectively espoused is pending, status quo should be maintained. This is precisely what is sought to be achieved through Section 33 of the ID Act. 9. The distinction between the first two Sub-section of Section 33 of the ID Act is of great import. In the former of the Management has to obtain the permission, and in the latter the approval of the Tribunal/Court. The words are not synonymous. The distinction is drawn in the Law Lexicon in these words- Ordinarily the difference between approval and permission is that in the first the act holds good until disapproved, while in the other case it does not become effective until permission is obtained. Black's law Dictionary also ascribes different meanings to these words. When two different words are used by the Legislature in such close proximity of each other, it must be presumed that this was intentional, and with the purpose of conveying that different roles were envisaged in the two sub-clauses. It must also follow logically that the course of the consideration of the industrial adjudicator would also be different in the two disparate situations. In the former i.e. under Section 33(1), the scrutiny is expected to be int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties under the ordinary law within the limits truly necessary for accomplishing the above object. The employer is accordingly left free to deal with the employees when the action concerned is not punitive or mala fide or does not amount to victimisation or unfair labour practice. The anxiety of the Legislature to effectively achieve the object of duly protecting the workman against victimisation or unfair labour practices consistently with the preservation of the employer's bona fide right to maintain discipline and efficiency in the industry for securing the maximum production in a peaceful harmonious atmosphere is obvious from the overall scheme of these sections. Turning first to Section 33, Sub-section, (1) of this section deals with the case of a workman concerned in a pending dispute who has been prejudicially affected by an action in regard to a matter connected with such pending dispute and Sub-section (2) similarly deals with workman concerned in regard to matters unconnected with such pending disputes. Sub-section (1) bans alteration to the prejudice of the workman concerned in the conditions of service applicable to him immediately before the commencement of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 'approval' under Section 33(2) of the ID Act, before a workman can be dismissed. He has to perform a proactive role and his complete satisfaction is essential and the dismissal of the workman is predicated on his decision. He can garner satisfaction from a perusal of the enquiry proceedings, if these had been conducted by the Management. In the event that he finds them to have deficiencies or short-coming, he can call for evidence to be led before him. Where permission is granted under Section 33(1) of the ID Act the decision is not of the Management; it is only taken at the instance of and on the request of the Management. Therefore, there may be a need to record evidence by the industrial Authority so that he can be sure and satisfied that his decision is correct. If, even in these circumstances, he is expected only to take a prima facie view [reference para 37 of Delhi Cloth General Mills Co. v. Ludh Budh Singh, AIR 1972 SC 1037] and not 'satisfaction to the hilt' as in Section 10, a fortiori, nothing more is expected when merely approval is to be granted under Section 33(2) of the ID Act either to an alteration of the conditions of service or discharge or puni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the statute albeit to a lesser extent than a protected workmen. A large number of workmen may have left or may have joined the industry after the initiation of the demands or the industrial dispute. It would cause industrial upheaval if the Management has the power to want only after their service conditions or to dismiss them, and thereby cripple and emasculate the agitation. This could not be the intention and purpose behind welfare legislation such as contained in the ID Act. 13. Having found that the provision applies to all workmen, the controversy is still not laid to rest, since the scope of the words matter connected with the dispute or not connected with it nonetheless remains to be unravelled. A detailed definition of concerned workman has still to be simultaneously drafted. 14. In M.D. Tamil Nadu State Transport Corporation v. Neethivilangan, Kumbakonam, (2001)ILLJ1706SC , the Hon'ble Supreme Court overruled its previous decision in Punjab Beverages Pvt. Ltd., Chandigarh v. Suresh Chand and Anr. (1978)IILLJ1SC and declared that the principle enunciated in Strawboard Manufacturing Co. v. Gobind 1962 (Suppl.) 3 SCR 618 and Tata Iron and Steel Co. Ltd. v. S.N. Modak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra) has been made in the Jaipur Zila case (supra), but the ratio of both are the same. The Reference to the Constitution Bench made in the later case was accordingly answered. The Constitution Bench made the following pronouncement, and in the underlined portion thereof made a further in the underlined portion thereof made a further advancement in favor of the workman concerned:- The proviso to Section 33(2)(b), as can be seen from this very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further any employer who contravenes the provisions of Section 33 invites a punishment under Section 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs. 1000/- or with both. This penal provision again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in other way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Section 33A challenging the order granting approval on any of the grounds available to him. Section 33A is available only to an employee and is intende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Reliance has been placed on observations of a Division Bench of the Orissa High Court in the case of Khagendra Prasad Patra v. D.T.M.S.T.S. Koraput and Anr., 1976 L. I.C. 1260, to the effect that Clause (a) of Section 33(1) forbids the employer to alter to the prejudice of the workman the conditions of his service only if the workman is the workman 'concerned in such dispute'. It does not debar the employer from altering the conditions of service or taking any such step in regard to any other workman. The word 'concerned' according to the Webster's Universal Unabridged Dictionary means 'interested; engaged; having a connection with;'. According to the Shorter Oxford English Dictionary it means 'interested, involved'. In order to substantiate the claim of contravention under Section 33(1)(a) the workman Therefore has to show that he was concerned with the pending dispute in any of the manners envisaged by the expression. The burden of proving this will naturally be on the workman . Learned Counsel for the respondent on the other hand drew attention to another passage from it which reads as follows:- The learned counsel for the petitioner urg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would reduce his emoluments and prejudice his promotional prospects. Two industrial disputes were then pending. The Division Bench of the High Court of Judicature, Kerala, opined that it was clear that in order to attract Section 33(1)(a) of the Act the ingredients inter alias to be proved were (1) that the matter in respect of which an alteration allegedly happened must have been concerned with the pending disputes and (2) that the workman in respect of whom the alteration took place must be shown to have been concerned with such dispute. In both these cases, it was Section 33(1) which had been attracted, and the question of whether approval ought to have been taken was not considered. This approach was also adopted by a Division Bench of the Madhya Pradesh High Court in Management, Dainik Naveen Duniya, Jabalpur v. Presiding Officer, Labour Court, Jabalpur and Anr., 1991 L. I.C. 327. On facts, the Bench was of the opinion that the impugned transfer orders had no concern whatever with the pending dispute relating to fixation of wages. In Indian Oxygen Limited v. Udaynath Singh and Ors., 1970 II LLJ 413, the question was whether any alteration in the conditions of service had oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hment in this case has a direct impact on the adjudication proceeding. The alteration effected in the temporary employment of the respondents which was their condition of service immediately before the commencement of the proceeding before the Tribunal, is in regard to a matter connected with the pending industrial dispute. ..... 15. That, however, does not conclude the matter. The Tribunal was clearly in error in not adjudicating the complaint on the merits. It is well settled that in a complaint under Section 33A, even if the employer is found to have contravened the provisions of Section 33, the Tribunal has to pronounce upon the merits of the dispute between the parties. The order passed in an application under Section 33A is an award similar to one passed in a reference under Section 10 of the Act. The award passed has to be submitted to the Government and the same has to be published under Section 17 of the Act. For the purposes of the Act the complaint under Section 33A takes, as it were, the form of a reference of an industrial dispute by the appropriate authority and the same has to be disposed of in a like manner. The Tribunal has committed an error of jurisdiction in dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here an employer contravenes the provisions of Section 33 during the pendency of proceedings before a tribunal, any employee aggrieved by such contravention may make a complaint in writing to the tribunal and on receipt of such complaint the tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of the Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly. It is thus clear that a complaint under Section 33A of the Act is as good as a reference under Section 10 of the Act and the tribunal has all the powers to deal with it as it would have in dealing with a reference under Section 10. It follows, Therefore, that the tribunal has the power to make such order as to relief as may be appropriate in the case and as it can make if a dispute is referred to it relating to the dismissal or discharge of a workman. In such a dispute it is open to the tribunal in proper cases to order reinstatement. Therefore, a complaint under Section 33A being in the nature of a dispute referred to a tribunal under Section 10 of the Act, it is certainly within its pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a group of workmen acting on their own or through their union then it would be difficult to resist the conclusion that all those who sponsored the dispute are concerned in it. As we have already pointed out this construction is harmonious with the definition prescribed by Section 2(s) and with the provisions contained in Section 18 of the Act. Therefore, we are not prepared to hold that the expression workmen concerned in such dispute can be limited only to such of the workmen who are directly concerned with the dispute in question. In our opinion, that expression included all workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute. 22. The most topically illustrative precedent as per the consensus of counsel for the parties is Bengal United Tea Company Ltd. v. Ram Lubhaya and Ors., in which while an industrial dispute pertaining to bonus was pending before the Industrial Tribunal, an employee was dismissed having been found guilty of insubordination by a domestic enquiry. We need not detain ourselves on the issue of whether he was a 'workman' or not. The employee filed an application under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the date of the dispute, and all persons who subsequently become employed in that establishment or part. Thus even persons who are subsequently employed will be bound by the award. The whole object of enacting Section 33 is to maintain peace and harmony during the period of adjudication and if the management is given power to discharge any other workmen during the pendency of the dispute before a tribunal, it is likely to interfere with the peace and harmony of the industry and thus defeat the very object of Section 33. The expression workman concerned in Section 33(2) even as a matter of construction does not mean any workman directly or immediately concerned in such dispute. Reference in this connexion may be made to the unreported decision of their lordships of the Supreme Court in the case of New Delhi Motors, Ltd. New Delhi v. K.T. Morris [C.A. No. 124 of 1959] decided on 22 March 1960 [since reported in (1960)ILLJ551SC wherein it was held that the expression workmen concerned in such dispute in Section 33(1) cannot be limited only to such of the workmen who are directly concerned with the dispute in question and that the expression includes all workmen on whose behalf the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Even if the workman has been engaged subsequent to the raising of the pending industrial dispute, but its verdict would effect the conditions of service applicable at that time, such a workman would be entitled to the protection of Sub-section (2) of Section 33 of the Act. Ex hypothesi, a uniform allowance may have been declared for all workmen in 1995, and the industrial dispute may have started in the following year. A workman who had been engaged in 1997 would be affected by an alteration in the uniform allowance regardless of the fact that he had been employed on a later date. But it is conceivable that a milk allowance which had been introduced in 1996 or 1997 was withdrawn in 1998 while the dispute was still pending. Such an action would ordinarily not call for the obtaining of approval. (e) It is also possible that although the workman had been engaged after the industrial dispute had commenced, he had actively participate din the union activities, thus creating a suspicion that the alteration of his condition of service were tainted with malafides of victimisation. He may not be a 'protected workman' but if the Management's decision is so vitiated, while prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... workman has failed to establish that it fall within the parameters laid down by the Hon'ble Supreme Court in Digwadih Colliery v. Ramji Singh, 1964 (8) FLR 456. It had been observed therein that in an application under Section 33 of the Act it is necessary that the workman should satisfy the Tribunal by proving that the nature of the dispute pending before the Tribunal applied to the dispute. The Court had taken into consideration the fact that since the workman had made no averment about the nature of the said dispute the Tribunal was in error in holding that Section 33(2) was attracted. The present petitioners have also not discharged this burden, inasmuch as they have failed to even plead some causality or connection between the pending disputes and the alleged termination of their services. This is evident from a reading of the pleadings in both the Section 33A Complaints filed by them. Had they pleaded, for instance, that they actively participated in the agitations relating to the pending disputes, and hence had been victimized, the nexus would prima facie have been set out. 27. The delicate problem is that the Management had not taken the approval as envisaged under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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