Documente Academic
Documente Profesional
Documente Cultură
Submitted by:
Suyogaya Awasthy
2014127
SEMESTER V
Visakhapatnam
OCTOBER 2016
CERTIFICATE
I, Suyogya awasthy, hereby declare that this Project titled submitted by me is an original
work undertaken by me. I have duly acknowledged all the sources from which the ideas and
extracts have been taken. The projects free from any plagiarism issue.
Editors Note: Social and economic justice is the ultimate ideal for any industrial
adjudication and the basis for this ideal lies in the guiding principles of social
welfare, common good and the directive principles of state policy enshrined in
the Constitution. The rationale behind legislation of Sec. 33 and Sec. 33A is to
provide protection to an employee and a tribunal has jurisdiction to do complete
justice between the parties with regards to the matter in dispute and also give
such relief as the nature of the case may require. It seeks to protect the
workmen concerned in the disputes which form the subject matter of the
pending conciliation proceedings or proceedings by way of reference under Sec.
10 of the Act and to bring about the resolution of such disputes in a peaceful
manner.
Introduction
The object of the Industrial relations legislation in general is industrial peace and
economic justice. The prosperity of any industry is very much dependent upon its
growing production. The furtherance of such production is only possible if the
industry functions uninterrupted. The working of any industry without any
hindrance largely depends upon the state policy so framed or legislated for the
very purpose. The factor which is to be taken into consideration for the smooth
functioning of industries is the relationship between the labour and the
management. Therefore what can be safely presumed is the very fact that any
industrial legislation so legislated necessarily aims at providing conditions
congenial to the industrial peace. Besides the Trade Unions Act, 1926, the
Industrial Disputes Act, is the most important Act that govern industrial relations
in India.1
Social and economic justice is the ultimate ideal for any industrial adjudication 2
and the basis for this ideal lies in the guiding principles of social welfare,
common good and the directive principles of state policy enshrined in the
Constitution.3 The essential function of industrial adjudication is to assist the
State by helping a solution of industrial disputes. 4 The two fold objective behind
any industrial adjudication is industrial peace and goodwill in industry so as to
place labour as well as capital on the same threshold. Industrial harmony helps in
providing a boost to the production which would invariably lead to strengthening
the economy of the nation. It is in lieu of the above mentioned that the Industrial
Disputes Act, 1947 was legislated or brought into force.
1 [i] There are 165 pieces of legislation, including 47 Central Acts on labor in India. However, labor legislation
in India can be broadly divided into three heads laws that relate to industrial relations (Industrial Disputes Act is
an example), laws that relate to wages (Payment of Wages Act is an example), and laws that relate to social
security (Payment of Bonus Act is an example).
As illustrated by the preamble and long title of the Act, the Act was brought into
existence for the very purpose for providing a machinery and forum for the
investigation and settlement of disputes thereof. Furthermore the Apex Court in
the case of Dimakuchi Tea Estate v. Dimakuchi Tea State 6 has attempted to lay
down the objectives of the Act in clear terms. The court has stated that the Act
attempts to promote good relations between the employer and workmen,
secondly to investigate and settle industrial disputes, between employers and
employees, employers and workmen or workmen and workmen, with a right of
representation by registered trade union or a federation of trade unions or an
association of employees. Thirdly, the Act also aims at preventing illegal strikes
and lock outs and provides relief to workmen in the matter of lay-off and
retrenchment.
In this paper the researcher will limit himself to only particular aspect of the
Industrial Disputes Act, 1947; the aspect being Section 33A of the said Act.
Section 33A of the Act states that:
(a) to such conciliation officer or Board, and the conciliation officer or Board shall
6 [vi] Dimakuchi Tea Estate v. Dimakuchi Tea State, 1958 AIR 353.
take such complaint into account in mediating in, and promoting the settlement
of, such industrial dispute; and
(b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt
of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as
the case may be, shall adjudicate upon the complaint as if it were a dispute
referred to or pending before it, in accordance with the provisions of this Act and
shall submit his or its award to the appropriate Government and the provisions of
this Act shall apply accordingly.
In this paper the researcher will attempt to deal with the legislative history of the
Section which will include the object and the legislative background of the
Section in Part I. Following it up in Part II the researcher will deal with the mode
of application of the Section per se. Part III will deal with the ambit of
adjudication under the Section and in the last part the researcher will attempt to
put forth his suggestions as to what reformations should be brought about in the
law.
Legislation
Until the amendment of the Act by the Industrial Disputes (Appellate Tribunal)
Act 1950, the sole remedy which an employee could avail for a breach of his
statutory right against the management was a reference by the government
under Section 10 of the Act.7 The complaint that was levied by the trade unions
was that the remedy of asking for a reference under Sec.10 involved a very
lengthy procedure and this thereby led to undue delay of the remedy and left the
redress of the grievance of the employee, entirely in the discretion of the
appropriate government, because in cases of contravention of Sec.33, the
appropriate government was not bound to refer the dispute under Sec.10. The
rationale behind insertion of Section 33A therefore was to make a special
provision to adjudicate upon complaints relating to the contravention of Sec.33.
Section 33A of the Act is attracted when the following conditions precedent are
satisfied per se. Firstly, that there should have been a contravention by the
management, of the provisions of Sec.33 of the Act and secondly, that the
9 [ix] Punjab National Bank Ltd v. Their Workmen, (1959) 2 LLJ 666, 680 (SC), per Gajendragadkar J.
contravention should have been during the pendency of the proceedings before
the labor court, tribunal or national tribunal, as the case may be. Thirdly, that the
complainant should have been aggrieved by the contravention and lastly, that
the application should have been made to the labor court, tribunal or national
tribunal in which the original proceedings are pending. 10 This provision enables a
workman aggrieved by a wrongful order passed against him in contravention of
Sec.33, to move the authorities enumerated in it, for redress of his grievances
without recourse to Sec.10 of the Act.11
On contravention of Section 33
The basic question that falls to be considered by the concerned authority in any
complaint made to the tribunal under Sec. 33A is whether there has been a
contravention by the employer of the provisions of Sec.33, and if it is in case
found that there has been a contravention of the provisions of Sec.33 then the
occasion arrives for the authority to embark upon the exercise to adjudicate
about the matter so complained in the complaint, on its merits. 12 Thus, a
contravention or a violation of the provisions of Sec.33 would be the justification
for the authorities concerned, to entertain an application under Sec.33A. 13
Before giving any relief to an aggrieved employee under this section, therefore,
the authority has first to determine that the employers act fell within the ambit
of one of the blanket prohibitions of Sec.33. If the dispute pending adjudication
has nothing to do with the alteration in conditions of service complained of and if
the alteration is not to the prejudice of the workman, the application under
Sec.33A will be wholly incompetent.14 Hence, a contravention of the provision of
Sec.33 is the foundation for the exercise of the power under Sec.33A of the Act. 15
If this issue is answered against the employee, nothing further can be done
under Sec.33A of the Act.16 In other words, an application under Sec.33A without
proof of a contravention of Sec.33 would be incompetent. 17
10 [x] Rajasthan State Road Transport Corpn v. Judge, Industrial Tribunal, Jaipur 1986 Lab IC 291, 296 (Raj)
(DB), per Lodha J.
11 [xi] Punjab Beverages Pvt Ltd v. Suresh Chand, (1978) 2 LLJ 1, 7 (SC), per Bhagwati J.
12 [xii] Stanley Mendex v. Giovanola Binny Ltd, (1968) 2 LLJ 470 (Ker), per Balakrishna Eradi J; Md Akhtar
Hussain v. State of Bihar, (1988) 1 LLJ 325 (SC). In lieu of the facts and circumstances of the case, the court
held that there was a clear case of contravention of Sec.33.
13 [xiii] Syndicate Bank Ltd v. K Ramnath V Bhat, (1967) 2 LLJ 745 (SC).
14 [xiv] Management, Dainik Naveen Duniya, Jabalpur v. Presiding Officer, Labour Court, Jabalpur 1991 Lab
IC 327, 329-30 (MP) (DB).
15 [xv] National Power Supply Corpn Ltd v. State of Assam, (1963) 2 LLJ 10 (Assam) (DB).
16 [xvi] Equitable Coal Co Ltd v. Algu Singh, (1958) 1 LLJ 793, 796 (SC).
17 [xvii] Upper Ganges Valley Electric Supply Co Ltd v. GS Srivastava, (1963) 1 LLJ 237 (SC).
Contravention of the provisions of Sec.33 for the purposes of Sec.33A, takes
place where during the pendency of an industrial dispute before a tribunal when
the employer alters the working conditions of the workmen under his service in
contravention of Sec. 33(1)(a), or when the employer alters the condition of
service of a protected workman, in contravention of Sec.33(3)(a). Further the
conditions which may lead to invoking the provisions of Sec.33A may be when
the employer discharges or punishes a workman, by dismissal or otherwise, for a
misconduct connected with the pending dispute, without obtaining a prior
express permission in writing, of the authority as stipulated under Sec. 33(i)(b).
What is to be taken into due account at this juncture is that when the termination
of the service of a workman is automatic as a result of the employees own act,
such as resigning from the employment, abandoning the job or over staying the
sanctioned leave then there would be no contravention of the provisions of
Sec.33 of the Act.20 Similarly, if the workman who complains under Sec. 33A is
not a workman concerned in the dispute then there would be no
18 [xviii] Rohtas Industries Ltd v. Dhurva Narayana Pathak, 1979 Lab IC 18,22 (Pat) (DB).
19 [xix] Supra X.
20 [xx] National Engineering Industries Ltd v. Hanuman, (1967) 1 LLJ 883 (SC).
contravention.21 Nor can a contravention take place when there is no pendency
of a proceeding before the concerned authority at the time of the alleged
contravention.22
Pendency
Noteworthy is the fact that not every violation of Sec.33 falls under the scope of
Sec.33A. To invoke this section, it must be established that the contravention
complained of took place during the pendency of a proceeding before any one of
the authorities so mentioned above.23 In simple parlance if at the time of alleging
such a contravention of Sec.33 there exists no pendency of a proceeding then
the provisions of Sec. 33A are not attracted. 24
The use of the word such in this section does not imply that at the time when
the complaint is preferred by the aggrieved workman, the main dispute must be
pending before the authority to which the complaint is preferred; it clearly refers
to the dispute which was referred to its adjudication and it has no reference to
the pendency of the main dispute.27 In other words it is sufficient that at the time
of the contravention of Sec. 33 the main dispute was pending before the
adjudicatory authority and it is not necessary that the dispute must continue to
be pending to the time of making the complaint.
COMPLAINT IN WRITING
A complaint under Sec.33A should adhere to the procedure so laid down in Rule
21 [xxi] New Indian Sugar Mills Ltd v. Krishan Ballabh Jha,(1967) 2 LLJ 210.
22 [xxii] Supra XI.
23 [xxiii] Arya Bhawan v. S Seetharaman, (1957) 2 LLJ 680.
The expression workman includes all workmen on whose behalf the dispute has
been raised as well as those on who would be bound by the award to be made in
the dispute. The expression does not limit itself to merely mean a workman
directly or immediately concerned.32 However where a dispute referred is not a
collective dispute, other workmen who are not parties to the dispute are not
workmen concerned in it. The question as to whether a particular workman was a
workman concerned in the dispute is a mixed question of fact and law. 33 In an
allegation so tabled before the tribunal the workman should satisfy the tribunal
by proving the nature of the dispute pending before it and that he was a
workman concerned in the pending dispute before asking the tribunal to make
finding on the question whether Sec. 33(2) has been contravened.
A registered trade union to which the aggrieved employee belongs has no right
to avail the relief so provided under Sec. 33A on behalf of the employee; unless it
has been expressly authorized to do so. 34 The right to complain against the
contravention of Sec. 33 has been conferred on the employee aggrieved by such
contravention. It is therefore only the employee who can avail the relief so
provided in the section. The onus to show that a union had no authority from the
aggrieved workman cannot be laid on the employer. The union must adduce
evidence to show that there has been an authority by the aggrieved workman
28 [xxviii] S Ayodha v. Addl Industrial Tribunal-cum-Addl Labour Court, Hyderabad 1989 Lab IC 1302, 1309.
29 [xxix] McLeod & Co v. Sixth Industrial Tribunal, AIR 1958 Cal 273.
30 [xxx] Tata Iron & Steel Co Ltd v. DR Singh, (1965) 2 LLJ 122 (SC).
31 [xxxi] Supra XV.
32 [xxxii] Bengal United Tea Co Ltd v. Ram Labhaya, (1962) 2 LLJ 37.
33 [xxxiii] Khagesh Sarkar v Tatanagar Foundry, (1962) 2 LLJ 379 (SC).
34 [xxxiv] Supra XXX.
authorizing it to file an application.35
Jurisdiction
The rationale behind legislation of Sec. 33 and Sec. 33A is to provide protection
of an employee and a tribunal has jurisdiction to do complete justice between
the parties with regard to the matter in dispute and also give such relief as the
nature of the case may require.36 The basic object of these two sections broadly
speaking is to protect the workmen concerned in the disputes which form the
subject matter of the pending conciliation proceedings or proceedings by way of
reference under Sec. 10 of the Act and to bring about the resolution of such
disputes in a peaceful manner.
The connotation of the term shall adjudicate upon the complaint as if it were a
dispute referred to or pending before it, in accordance with the provisions of this
Act clearly indicate the jurisdiction of the authority under Sec. 33A is the same
35 [xxxv] Ibid.
36 [xxxvi] Imperial Tobacco Co Ltd v. Ishwar Das, AIR 1958 All 317 (DB).
Sec. 33 and 33A do not in any way compel the adjudicating authority to order
reinstatement as soon as it finds that there has been a violation of Sec.33. 40 The
scope of inquiry as the precedents suggest have been a very dicey subject
matter giving way to a lot of controversy and it is in lieu of such a controversy
that the case of Automobile Products of India Ltd v. Rukmaji Bala 41 provided the
apex court the opportunity for the very first time to consider the matter. The
apex court in the above mentioned case observed that the scheme of the section
clearly in illustrative terms lays down the authority to which the complaint is to
be made in respect of issues arising due to contravention of Sec. 33 and the
merits of the act or order of the employer. Simply put the jurisdiction of the
authority is not only to merely adjudicate upon the matter and decree the relief
but to also to indulge into the merits of the case.
The court in the above mentioned case rejected the plea that the tribunals duty
was only to find whether there was a contravention of Sec. 33 and if it found that
there was a contravention to make a declaration regarding the same and no
further question should be considered in such an inquiry. 42The question was
again raised before the court in the case of Equitable Coal Co Ltd v Algu Singh 43
in which it followed the rule laid down in Automobile Products. 44 In the case of
Punjab National Bank Ltd v. Their Workmen45 the court was asked to adjudicate
upon the question as to whether inquiry so made under Sec. 33A is strictly
limited to determine as to whether there has been a contravention of the
provisions of Sec. 33A. The court rejected the contention so raised and remarked
that
Thus there can be no doubt that in an enquiry under Sec.33A the employee
would not succeed in obtaining an order of reinstatement merely by proving
contravention of Sec.33 by the employer. After such contravention is proved it
would still be open to the employer to justify the impugned dismissal on the
39 [xxxix] Ibid.
40 [xl] Ibid at XXXVIII.
41 [xli] Automobile Products of India Ltd v. Rukmaji Bala, (1955) 1 LLJ 346 (SC).
42 [xlii] Ibid.
43 [xliii] Supra XVI.
44 [xliv] Supra XL.
45 [xlv] Supra IX.
merits. There can be no doubt that if under a complaint filed under Sec.33A a
tribunal has to deal not only with the question of contravention but also with the
merits of the order of dismissal, the position cannot be any different when a
reference is made to the tribunal like the present under Sec.10.
From the above mentioned dicta is quite clear that the fact of a contravention of
Sec. 33 does not make the orders of discharge or dismissal void or inoperative
thereby entitling the reinstatement of the employee. The order of dismissal can
only be annulled by the tribunal in adjudicatory proceedings either on a
reference under Sec. 10 or on a complaint under Sec. 33A. As long as the order
of discharge or dismissal is not so annulled it will be considered that the
employee is dismissed for all purposes. It is obligatory on part of the tribunal to
give a decision based on the merits of the case provided it falls within the ambit
of the section.46 The complaint under Sec. 33A must be considered by the
tribunal as a separate dispute, independently and without being in any way
influenced by its previous decision under Sec. 33 against the employer. Hence, a
complaint against the discharge of a workman in contravention of the provisions
of Sec. 33 would be adjudicated upon by the adjudicatory authorities in the same
manner as they would adjudicate upon an industrial dispute arising out of such
discharge of the workman under Sec. 11A.
Relief
In the case of Kumarhatty Co Ltd v. Ushnath Pakrashi 47 the Apex court has
categorically stated that a complaint under Sec. 33A of the Act is to be placed on
an equal threshold as compared to a complaint made under Sec. 10 and the
adjudicatory body has every right vested in it to deal with the complaint under
Sec. 33A by following the similar procedure as it would have done had the
complaint been filed under Sec. 10 of the Act. Therefore it can be safely assumed
at this juncture that the adjudicatory body is vested with the power to decree the
relief as may be permissible in the light of Sec. 11A. Moreover in a complaint
lodged by the employee against the employer on grounds of dismissal being in
breach of Sec. 33 the adjudicatory body has the power to order a reinstatement
if it is found that there indeed has been a breach of Sec. 33.
The wordings used in Sec. 33A clearly illustrate the rationale behind insertion of
the section i.e. to provide a speedy remedy to an employee who has been
46 [xlvi] Sri Ram v. Labour Court, (1970) 1 LLJ 392 (All) (DB).
Award
The words and the provisions of this Act shall apply accordingly as mentioned in
Sec. 33A signify that the adjudicating body has to submit its award to the
appropriate government. In such a scenario the provisions of Sec. 11A get
automatically attracted. The awards after being published under Sec. 17A will
have the same effect and force as awards made on a reference under Sec.10.
Noteworthy is the fact that an award under Sec. 33A will operate as res judicata
to a subsequent reference under Sec. 10 of the same subject matter. 48
The findings of an adjudicatory authority that the concerned workman was guilty
of the misconduct alleged against him or not is a finding of fact arrived at by the
authority on evidence and such findings cannot be interfered with by the
Supreme Court in an under appeal Art. 136 49 or by a High Court in a writ petition
under Art. 226 or 227 of the Constitution.50 If the adjudicating authority after
presiding over the matter arrives at the conclusion that the action of an
employer against his employee was justified and the breach so alleged happens
to be merely technical in nature and unless there are compelling reasons in favor
of the employee so that the court may decree an order of compensation in favor
of the employee the decision of the adjudicating authority stands. As to what
compensation would be adequate in case of a technical breach is dependent
upon the facts and circumstances of each case. 51
The procedures so laid down in Sec. 33A which have evolved through the dicta of
the apex court over a period of time have not solved the very purpose for which
it was legislated in the first place but has rather given birth to a state of
BIBLIOGRAPHY
Automobile Products of India Ltd v. Rukmaji Bala (1955) 1 LLJ 346 (SC) (SC,
1955).
52
[lii] Hariba v KSRTC (1983) 2 LLJ 76, 84.
CA Rodrick v Karam Chand Thapar & Sons Pvt Ltd. (1963) 1 LLJ 248 (1963).
Crown Aluminium Works v. Their Workmen AIR 1958 SC 30. (SC, 1958).
Dimakuchi Tea Estate v. Dimakuchi Tea State 1958 AIR 353 (SC, 1958).
Hindustan General Electrical Corpn Ltd v. Bishwanath Prasad (1971) 2 LLJ 340
(SC) (SC, 1971).
Hindustan Motors Ltd v. Mahendra Singh Dhantwal (1965) 1 LLJ 612 (1965).
Imperial Tobacco Co Ltd v. Ishwar Das AIR 1958 All 317 (DB) (1958).
Khagesh Sarkar v Tatanagar Foundry (1962) 2 LLJ 379 (SC) (SC, 1962).
Md Akhtar Hussain v. State of Bihar (1988) 1 LLJ 325 (SC) (SC, 1988).
National Engineering Industries Ltd v. Hanuman (1967) 1 LLJ 883 (SC) (SC, 1967).
National Power Supply Corpn Ltd v. State of Assam (1963) 2 LLJ 10 (Assam) (DB)
(Assam, 1963).
New Indian Sugar Mills Ltd v. Krishan Ballabh Jha (1967) 2 LLJ 210 (1967).
Orissa Cement Ltd v. Their Workmen (1960) 2 LLJ 91 (SC) (SC, 1960).
Punjab Beverages Pvt Ltd v. Suresh Chand (1978) 2 LLJ 1, 7 (SC) (SC, 1978).
Punjab National Bank Ltd v. Their Workmen (1959) 2 LLJ 666, 680 (SC) (SC,
1959).
Rajasthan State Road Transport Corpn v. Judge, Industrial Tribunal 1986 Lab IC
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Rohtas Industries Ltd v. Dhurva Narayana Pathak 1979 Lab IC 18,22 (Pat) (DB)
(Pat, 1979).
Sri Ram v. Labour Court (1970) 1 LLJ 392 (All) (DB). (1970).
Stanley Mendex v. Giovanola Binny Ltd (1968) 2 LLJ 470 (Ker) (Ker, 1968).
State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610 (SC, 1960).
State of Mysore v. Workers of Gold Mines AIR 1958 SC 923. (SC, 1958).
Syndicate Bank Ltd v. K Ramnath V Bhat (1967) 2 LLJ 745 (SC) (SC, 1967).
Tata Iron & Steel Co Ltd v. DR Singh (1965) 2 LLJ 122 (SC). (SC, 1965).
Upper Ganges Valley Electric Supply Co Ltd v. GS Srivastava (1963) 1 LLJ 237
(SC) (SC, 1963).
ENDNOTES