TaxTMI 
TaxTMI 
TaxTMI 
2002 (9) TMI 906
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....ationship that 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 ....
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....devised by Managements 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 an....
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....that such workmen would always be the target 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 'manage....
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....'protected workmen' it shall be referred 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....
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.... is pending for approval of the action taken by the employer. (3) 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 protect....
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....icularly the proviso thereto, have been formatted, aligned and printed differently in its sundry reproduction. 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 p....
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.... also to give industrial adjudication the best chance to succeed in a peaceful environment, that while a consideration of general demands 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....
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.... in accordance with the provisions of the Act. This ban,m however, is designed to restrict interference with the general rights and liabilities of the parties 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....
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.... in Sub-sections (1) and (2)." 11. Under Section 33(1) of the ID Act, the industrial adjudicator has to give his express permission in writing, in contradistinction to '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 fortio....
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....nifested a potential for union leadership, and for this reason may have invited on himself the displeasure of the Management. Such a workman definitely deserves the protection 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., Chand....
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....d Ors., 1 (2002) SLR 298 : [2002] 1 LRI 447, relied upon before me by Mr. Joshi. Although the two cases were decided within six months of each other, no reference to M.D. Tamil Nadu State Transport Corporation case (supra) 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 natu....
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....y way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. if the authority refuses to grant approval obviously it follows that the employee continues to be 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 employe....
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....arisen in these Petitions is whether the petitioners, who on their own submissions were employed after the Reference of the dispute to the Court, could nonetheless fall within the category of "concerned workman" under Section 33-A of the ID 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 manne....
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....roach and arrive at decision that will presently be seen. 18. In the dispute concerning the Management of Premier Tyres Ltd., Kalamassery and T.K. Bhaskaran Nair, 1979 1 L.L.J. 302, the Workman had drawn the Management into litigation via Section 33A of the Act assailing his transfer, on the grievance that 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.....
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....done through a contractor instead of by these temporary workers, it was incumbent upon the appellant to obtain prior permission of the Tribunal to change the conditions of their employment leading to retrenchment of their services. The alteration of the methods of work culminating in termination of the services by way of retrenchment 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 G....
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.... Apex Court intended to go any further than merely referring to the particular workman involved in that dispute. The following passage is instructive and calls to be reproduced verbatim: "In our opinion, the answer to the limited question on which the special leave has been granted can only be one in view of the language of Section 33A. That section lays down that where 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 ....
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....es. We do not see any justification for adding the further qualification of direct or immediate concern which the narrow construction necessarily assumes. In dealing with the question as to which workmen can be said to be concerned in an industrial dispute we have to bear in mind the essential condition for the raising of an industrial dispute itself, and if an industrial dispute can be raised only by 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....
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.... be binding on (a) all parties to the industrial dispute. (b) all other parties summoned to appear in the proceedings as parties to the dispute unless the tribunal records the opinion that they were so summoned without proper cause, and (d) where a party referred to in Clause (a) or Clause (b) is composed of workmen all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates 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 t....
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....e Supreme Court in the Jaipur Zila Bank case (supra). (c) While deciding such an approval application the best approach of the Authority would be to keep the entire phrase "the workman concerned in such dispute" in mind rather than just the words "workman concerned", since the latter shifts the focus from the dispute to the workman. Once the frontiers of the dispute are identified, the enquiry would shift to the workman. (d) The date of employment is not the determinate element of the dispute. 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....