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2002 Supreme(Del) 1461
High Court Of Delhi
RODHI - Appellant
Versus
GOVERNMENT OF DELHI - Respondent
Decided On : 09/20/2002
The approval of the authority under Section 33(2)(b) of the Industrial Disputes Act, 1947 is mandatory and the employer's failure to obtain such approval renders the termination of the workman's services illegal.
Headnote:
INDUSTRIAL DISPUTES ACT, 1947 - SECTION 33 AND 33A - INTERPRETATION - SCOPE AND APPLICABILITY - CONDITIONS OF SERVICE - ALTERATION - APPROVAL OF AUTHORITY - REQUIREMENT - PROTECTED WORKMEN - STATUS - CONDITIONS - UNION MEMBERSHIP - RECOGNITION - PROCEDURE - DISMISSAL OR PUNISHMENT - PERMISSION OF AUTHORITY - REQUIREMENT - SCOPE - DISTINCTION BETWEEN SUB-SECTIONS (1) AND (2) OF SECTION 33 - INDUSTRIAL ADJUDICATOR'S ROLE - SCOPE OF ENQUIRY - SPECIAL PROVISION FOR ADJUDICATION OF COMPLAINTS UNDER SECTION 33A - APPLICABILITY - WORKMEN CONCERNED IN DISPUTE - SCOPE - INDUSTRIAL DISPUTE - PENDENCY - REQUIREMENT - ALTERATION OF CONDITIONS OF SERVICE - NEXUS WITH PENDING DISPUTE - REQUIREMENT - BURDEN OF PROOF - APPROVAL OF AUTHORITY - MANDATORY REQUIREMENT - COMPLIANCE - NECESSITY - INDUSTRIAL TRIBUNAL'S JURISDICTION - SCOPE - REINSTATEMENT ORDER - POWER OF TRIBUNAL.
Fact of the Case:
The Petitioners, who were employed by the Respondent after the commencement of an industrial dispute, filed complaints under Section 33A of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), alleging that their services were terminated in violation of the provisions of Section 33(2)(b) of the Act. The Petitioners contended that they were entitled to the protection of Section 33 of the Act, despite being employed after the commencement of the dispute, as the alteration of their service conditions and termination of their services were connected with the pending dispute. The Respondents contended that the Petitioners were not workmen concerned in the dispute and that the approval of the authority under Section 33(2)(b) was not required as the termination of their services was not connected with the dispute.
Finding of the Court:
The Court held that the Petitioners were entitled to the protection of Section 33 of the Act, even though they were employed after the commencement of the dispute, as the alteration of their service conditions and termination of their services were connected with the pending dispute. The Court further held that the approval of the authority under Section 33(2)(b) was mandatory and that the Respondents' failure to obtain such approval rendered the termination of the Petitioners' services illegal. The Court also held that the Industrial Tribunal had jurisdiction to adjudicate upon the Petitioners' complaints under Section 33A of the Act and that the Tribunal had the power to order the Petitioners' reinstatement.
Issues: 1. Whether the Petitioners were entitled to the protection of Section 33 of the Act, despite being employed after the commencement of the dispute? 2. Whether the approval of the authority under Section 33(2)(b) was required as the termination of the Petitioners' services was not connected with the dispute? 3. Whether the Industrial Tribunal had jurisdiction to adjudicate upon the Petitioners' complaints under Section 33A of the Act? 4. Whether the Tribunal had the power to order the Petitioners' reinstatement?
Ratio Decidendi: 1. The Court held that the Petitioners were entitled to the protection of Section 33 of the Act, even though they were employed after the commencement of the dispute, as the alteration of their service conditions and termination of their services were connected with the pending dispute. The Court relied on the following principles: * The purpose of Section 33 of the Act is to maintain peace and harmony during the period of adjudication and to prevent the employer from taking any action that may interfere with the peace and harmony of the industry. * The expression "workman concerned" in Section 33(2) includes 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. * 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. 2. The Court held that the approval of the authority under Section 33(2)(b) was mandatory and that the Respondents' failure to obtain such approval rendered the termination of the Petitioners' services illegal. The Court relied on the following principles: * The proviso to Section 33(2) qualifies both the sub-clauses. The words "action taken' should be given the widest effect. * Therefore, before a decision to alter any service conditions that are not connected with any dispute takes effect, an approval application must be filed and decided upon. * The legal consequences that follow from the filing of such an application have now been authoritatively settled by the Constitution Bench of the Hon'ble Supreme Court in the Jaipur Zila Bank case (supra ). 3. The Court held that the Industrial Tribunal had jurisdiction to adjudicate upon the Petitioners' complaints under Section 33A of the Act. The Court relied on the following principles: * Section 33A of the Act provides a special provision for adjudication of complaints where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a conciliation officer, Board, arbitrator or Labour Court or Tribunal. * The complaint under Section 33A 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. 4. The Court held that the Tribunal had the power to order the Petitioners' reinstatement. The Court relied on the following principles: * In a complaint under Section 33A, 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.
Final Decision: The Petitions were dismissed, but there was no order as to costs.
( 1 ) CONSIDERABLE interest has been generated in these petitions since Counsel for the parties have contended that the controversy is not covered by any directly applicable precedent. The legal issue which has arisen centres around the interpretation of S. 33 and 33a of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act ). The factual matrix, as averred by the Petitioner/workman, is that the Indian Express union had raised Industrial Dispute No. 101/1987 and 148/1987 regarding several issues such as milk allowance etc. which were pending before the Industrial Tribunal no. I, Delhi. In January/february 1992, the Petitioners names were allegedly transferred from the pucca to the kucha Registers maintained by the Respondents in their newsprint Department, thereby altering the service relationship 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 S. 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 S. 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 controverted by the Respondents. They have averred that the petitioners were employed by Messrs Royal Security services who were providing the Respondent with newsprint handling services. It is the Management s assertion that the Petitioners were paid their wages by royal Security Services only.
( 2 ) I do not propose to reflect on the rival factual stands in any greater detail, since the first complaint, prior to the dismissal of the Petitioners has been disposed of by the Presiding Officer, industrial Tribunal I by the Order dated 10. 6. 1997 and the second complaint by Order dated 28. 8. 1997 on the preliminary issue of their non-maintainability. It is these Orders that have been assailed in this batch of writ petitions, which have also not been filed through the aegis or initiative or espousal of any of the concerned labour unions.
( 3 ) COMMON law recognizes the untrammelled freedom to contract. One aspect of it is the unfettered liberty to hire and fire and this has even been incorporated into the Specific Relief Act which enunciates that injunctory relief ought not to be granted if it tantamounts to the enforcement of personal services. However, gradually it has been jurisprudentially accepted that where two parties are of such disparate social or economic status as would render illusory this freedom to contract, it is necessary that law should step in to affect a balance between them. Labour laws and Rent Control legislation, to cite two examples, evolved in the last century on this rationale, and came to constitute an extremely important branch of law which has been most frequently invoked. Now, while there is still unrestricted capacity to hire, labour laws have introduced rigours on the right to fire. This has been fortified by the introduction of S. 2a in 1965, enabling a single dismissed workman to initiate an industrial dispute without the rigour of its espousal by the Union. In the case of workmen within the contemplation of the id Act their se
