The provisions of Section 33-A of the Industrial Disputes Act, 1947, do not apply to cases of retrenchment.

( 1 ) THE subject matter of challenge in this writ application is an award passed by the 3rd Industrial Tribunal on May 4, 1995. The award was passed under Section 33-A of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act ). The only question which arises for determination in the writ application is whether the provisions of Section 33-A at all applied.

( 2 ) THE facts, on the basis of which, the impugned award was passed are as follows: the respondent workman who was employee of the writ petitioner Company had received an order dated February 28, 1993 from Chandni Paints stating that the respondent-workman haying attained superannuation he was retired from services with immediate effect. According to the petitioner Company, the workman, was not at all an employee of the petitioner, but was employed by Chandni Paints. This aspect of the matter cannot be reagitated by the petitioner at this stage because the point which was essentially a question of tact was not raised by the petitioner before the Tribunal.

( 3 ) HOWEVER, the second submission of the petitioner that at the highest the order amounted to retrenchment and as such, did not come within the purview of Section 33 (2) (b) and therefore, Section 33-A of the Act is of substance. The petitioner had made an application under Section 33-A of the Act before the Tribunal alleging contravention of the provisions of Section 33 during the pendency of proceeding before a Labour Court. Section 33 provides for an embargo on an employer in respect of an employee in connection with two situations. The first situation is covered by Sub-section (1) where action is sought to be taken by the employer in connection with the dispute pending either by way of alteration of the conditions of service to the detriment of the workman or by punishment for misconduct connected with the dispute. The second embargo is provided for in Sub-section (2) in matters not related with the pending dispute. In this case, there is no disagreement between the parties that Sub-section (2) would apply as the dispute then pending did not relate to the termination of the workman's services. The case of the workman before the Tribunal was that during the pendency of the proceeding in respect of industrial dispute the writ petitioner had terminated the workman's services on the ground of alleged superannuation, although there was no condition of services prescribing the age of superannuation at all. It was not the workman's case that his services were terminated for any misconduct at all. It was also not the petitioner's case that the employer had altered the terms and conditions of services. On the other hand, his case was based on a non-alteration of the service condition. That being so, the provisions of Section 33 (2) would not apply. There was, therefore, no requirement for the petitioner-Company to make any application for approval before issuing the impugned order to the petitioner.

( 4 ) SINCE Section 33 did not apply the question of contravention thereof by the writ petitioner did not arise. The Tribunal erred in not considering whether the order of termination had been issued for misconduct so as to bring it within Section 33 (2) (b) or was a retrenchment under Section 2 (oo) of the 1947 Act.

( 5 ) IT is, however, clear from the facts which are not in dispute that the termination of the respondent-workman's services with the petitioner was at the highest an order of retrenchment which is not covered by Section 33 (2) (b ). The impugned award, therefore, cannot stand. The remedy of the respondent-workman lay not in an application u/sec. 33-A but u/sec. 10 of the Act. The writ application accordingly must be and is hereby allowed. The impugned award dated May 4, 1995 is quashed: and set aside. Incidentally, it may be mentioned that subsequent to the passing of the award which was exparte, an application was made by the writ petitioner for recalling the award. This was reje