The employer cannot change the conditions of service during conciliation proceedings, and complaints under Section 33-A of the ID Act can be filed before the Labour Court or Tribunal.

JUDGMENT

Poonam A. Bamba, J. (Oral)

1.0. Vide this petition, the petitioner is assailing the order dated 06.07.2023 whereby the petitioner`s application challenging the proceedings u/s 33A Industrial Disputes Act, 1947 (ID Act) was dismissed by the Ld. Presiding Officer, Industrial Tribunal-01, Rouse Avenue Court, New Delhi in LIR no. 802/2021.

2.0. Relevant portion of the impugned order dated 06.07.2023 dismissing the petitioner`s application pleading that the proceedings under Section 33-A ID Act are not maintainable, reads as under :

"An application filed by the management is pending whereby the management has stated that proceedings u/s 33 A ID Act are not maintainable as the workman was terminated on 05.11.2016 and main reference was filed on 03.03.2017.

The AR of the workman has straightway argued the application stating that demand was raised on 10.03.2016 and matter was pending with conciliation officer in July 2016 much before the date when the workman was terminated. The dates are not disputed. Section 33 A of the ID Act does not say that matter should be pending before labour court or tribunal only, but it includes the words Conciliation Officer as well. In these circumstances, the arguments of the ld. AR for the management does not hold water and same are discarded. Accordingly, petitioner is maintainable and application of the management is dismissed."

3.0. It would be pertinent to refer here to the relevant provisions. Section 33 (1) of ID Act reads as under :

33. Conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings :

(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before [an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall--

(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or

(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute,

save with the express permission in writing of the authority before which the proceeding is pending.

3.1. Section 33-A of ID Act reads :

S. 33-A - Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceedings) - Where an employer contravenes the provisions of Section 33 during the pendency of proceedings [before a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal], any employee aggrieved by such contravention, may make a complaint in writing, [in the prescribed manner,--

(a) to such conciliation officer or Board, and the conciliation officer or Board shall 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.].

3.2. From the plain reading of Section 33 ID Act, it is clear that conditions of service of a workman can not be changed during the pendency of proceedings before Conciliation Officer or Board or a Labour Court or a Tribunal, without seeking permission in writing of the concerned authority, before which the proceeding is pending. Further, in case any employer in contravention of S. 33 (1), changes the conditions of service during the pendency of such proceedings, an employee may make a complaint under Section 33A ID Act in this respect which shall be adjudi