Scope and ambit of the provisions of Section 33(3).

G. Ramanujam, J.

1. This appeal is directed against the decision dated 17th July, 1980 of Mohan, J., in Writ Petition No. 5916 of 1979. The appellant herein was employed as a clerk by the respondent-Management with effect from 1st August, 1973. He successfully completed the prescribed period of probation of six months and he was confirmed in that post with effect from 1st January, 1974. Some of the employees' of the respondent-Management were members of the All India Indian Potash Employees Union. They had made several demands such as revision of scales of pay, existing daily batta, supply of uniforms, comprehensive insurance, etc., on the Management which the Management was not in a position to comply with. Eventually, the Government of Tamil Nadu by G.O. Ms. No. 702, Labour and Employment, dated 10th March, 1978 had referred the said dispute under Section 10(1)(d) of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act) to the Industrial Tribunal, Madras, and the same had been taken on file by the Tribunal on 10th July, 1978 as I. D. No. 46 of 1978.

2. While that dispute was pending, on 1st June, 1979, the Management passed orders transferring the appellant from Madras to Ahmedabad. The petitioner by letter dated 8th June, 1971 requested the Management to rescind the said transfer order. The Management having declined to rescind the transfer order, he filed a complaint (Complaint No. 5 of 1979) before the Tribunal under Section 33-A of the Act complaining that the Management has been guilty of contravention of the provisions of Section 33 of the Act inasmuch as the Management has not obtained the prior approval of the Tribunal as he is a protected workman and that in any event the order of transfer amounted to a change in the conditions of service which is prohibited by Section 33 (2) of the Act.

3. The said complaint was resisted by the Management contending that there was no contravention of the provisions of Section 33 of the Act and that an order of transfer will not amount to a change in the conditions of service and as such there is no necessity to obtain the prior sanction or approval. The Management also denied that the appellant it a 'protected workman' or that the transfer order is a mala fide action taken to victimise him for his union activities. In view of the said rival contentions, the Tribunal set down the following two issues in Complaint No 5 of 1979:

(1) Whether the conditions of service applicable to petitioner have been altered pending Industrial Dispute No. 46 of 1978, on the file of the Tribunal? (2) Whether the petitioner is a 'protected workman' as contemplated under Section 33 (3) of the Industrial Disputes Act, 1947.

4. On the first issue, though the Tribunal prima facie agreed with the Management that the transfer of the petitioner from Madras to Ahmedabad would not amount to an alteration of conditions of service applicable to him, proceeded to hold that as the order of transfer has been made by the Management without taking into account the hardship that may be caused to him by such transfer, the service conditions applicable to the appellant should be deemed to have been altered to his prejudice, and therefore, the action taken by the Management will come either under Section 33 (2) (a) or under Section 33 (3) (a) of the Industrial Disputes Act. On the second issue, the Tribunal held that the petitioner was a 'protected workman' coming within the meaning of Explanation to Section 33 (3) of the Industrial Disputes Act.

5. In view of the findings rendered by the Tribunal on the above two issues, it found that the order of transfer is not bona fide but an act of victimisation of the appellant for his trade union activities, and therefore, there is contravention of the provisions of Section 33. In this view, the Tribunal passed an Award, dated 5th October, 1979, holding that the transfer of the petitioner from Madras to Ahmedabad is unjustified.

6. Aggrieved by the Award passed by