PETITIONER:
BHAVNAGAR MUNICIPALITY
Vs.
RESPONDENT:
ALIBHAI KARIMBHAI & OTHERS
DATE OF JUDGMENT08/02/1977
BENCH:
GOSWAMI, P.K.
SHINGAL, P.N.
CITATION:
1977 AIR 1229 1977 SCR (2) 932
1977 SCC (2) 350
ACT
Industrial Dispute Act, S. 33(1)(a), whether contravened
by retrenchment of workers directly involved in dispute
pending before Tribunal--Contravention of s. 33, whether
automatically leads to reinstatement of retrenched workers.
HEADNOTE
An industrial dispute between the appellant and its
workmen including the respondents, was pending before the
Industrial Tribunal. The dispute, inter alia, related to
the demand for permanent status of the respondents who were
rated workers of the water works section of the Munici-
pality. Meanwhile, without obtaining the Tribunal’s prior
permission, the appellant retrenched the respondents. On a
complaint by the respondents u/s. 33-A of the Industrial
Disputes Act, the Tribunal made an award holding that the
appellant had contravened s. 33(1)(a) of the Act, and di-
rected reinstatement of the respondents. The complaint was
not adjudicated on merits. The appellant filed a writ
petition which was dismissed in limine by the High Court.
Allowing the appeal, but agreeing that the appellant had
contravened s. 33 ( I ) (a) and that the respondents’ com-
plaint u/s. 3 3 ( 1 ) (a) was maintainable, the Court re-
stored the respondents’ complaint for disposal on merits by
the Tribunal.
HELD: (1) The character of the temporary employment of
the respondents being a direct issue before the Tribunal,
that condition must subsist and cannot be altered to their
prejudice by putting an end to that temporary condition.
This could be done only with the express permission of the
Tribunal.
[933-G-H]
The Court further observed:
To permit rupture in employment, in this case, without
the prior sanction of the Tribunal will be to. set at naught
the avowed object of section 33 which is principally direct-
ed to preserve the status quo under specified circumstances
in the interest of industrial peace during the adjudication.
[936 A-B]
(2) In a complaint under s. 33-A, 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. For the purposes of the Act, the
complaint under s. 33A takes the form of a reference of an
industrial dispute by the appropriate authority and the same
has to be disposed of in a like manner. [936 C-D]
(3) The Tribunal has committed an error of jurisdiction
in ordering-reinstatement of the respondents and declining
to adjudicate the matter and to make its award on the merits
as required under the law. [936 D]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 900 of 1976.
Appeal by Special Leave from the Judgment and Order
dated 8-3-1976 of the Gujarat High Court in Spl. Civil
Appln. No. 263 of 1976.
P.H. Parekh and (Miss) Manju jetley for the Appellant.
S.C. Agarwal, V.J. Francis and A.P. Gupta for the Respond-
ents.
933
The Judgment of the Court was delivered by
GOSWAMI, J. This appeal by special leave at the in-
stance of the Bhavnagar Municipality is directed against the
order of the Gujarat High Court dismissing in limine its
writ application challenging the award of the Industrial
Tribunal, Gujarat, made under section 33A of the Industrial
Disputes Act (briefly the Act).
There was an industrial dispute pending between the
Bhavnagar Municipality (briefly the appellant) and its
workmen before the Industrial Tribunal ’in Reference No. 37
of 1974 referred to it under section 10(1) (d) of the Act on
March 5, 1974. The said industrial dispute related to
several demands including the demand for permanent status of
the daily rated workers of the Water Works Section of the
Municipality who had completed 90 days’ service. While the
aforesaid industrial dispute was pending before the Tribu-
nal, the appellant, on September 30, 1974, passed orders
retrenching 22 daily rated workmen (briefly the respondents)
attached to the Water Works Section of the Municipality. It
is not disputed that the appellant had complied with sec-
tion 25F of the Act and due retrenchment compensation had
been paid to those workers. On June 20, 1975, the respond-
ents filed a complaint to the Tribunal under section 33A of
the Act for contravention of section 33 of the Act by the
appellant.
Neither party adduced any oral evidence before the
Tribunal but relied only upon documents produced before it.
On October 30, 1975, the Tribunal made its award holding
that the appellant contravened section 33(1)(a) of the Act
and, therefore, directed reinstatement of the respondents.
The appellant preferred a writ application before the High
Court which was dismissed in limine, as stated above. Hence
this appeal by special leave.
Two questions arise for decision in this appeal. First,
whether the appellant contravened section 33 (1)(e) of the
Act by ordering retrenchment of the respondents who, along
with other workers, were directly involved in the industrial
dispute pending before the Tribunal. Second, whether contra-
vention of section 33 will automatically lead to an order of
reinstatement of the respondents, as has been held by the,
Tribunal.
It is common ground that the appellant did not obtain
prior permission of the Tribunal before retrenching the
respondents.
It is well settled that a complaint under section 33A is
maintainable only if the employer contravenes section 33 of
the Act. It is submitted by Mr. Agarwal, on behalf of the
respondents, that the object of section 33 should be borne
in mind in considering the question about alteration of
conditions of service under section 33(1)(a) of the Act. He
submits that since the respondents were directly in-
volved in the dispute and the question of their permanent
status from a casual or temporary status formed the subject
matter of the dispute, the reference. has been made nuga-
tory by the action of the appellant in retrenching them.
’Mr. Parekh, on the other hand, submits that retrenchment of
the respondents does not’ involve alteration of conditions
of service and hence there is no contravention of section 33
of the Act.
934
There is no complaint by Mr. Agarwal that there is any
noncompliance by the appellant with section 28F of the .Act.
Mr. Agarwal further rightly concedes that he cannot bring
his case under section 33(1) (b) or under section 33(2)(b)
since it is not a case of discharge or dismissal for miscon-
duct. His entire submission is based on section 33(1)(a)
of the Act.
Section 33 of the Act so far as material for
us may be set out:
"33(1) During the pendency of any ....
proceeding before a ......
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 condi-
tions of service applicable to them immediate-
ly before the commencement of such proceeding;
X X X
save with the express permission in writing
of the authority before which the proceeding
is pending".
There is a clear prohibition in section 33(1)(a)
against altering conditions of service by the employer
under the circumstances specified except with the written
permission of the Tribunal or other authority therein de-
scribed.
In order to attract section 33(1)(a), the following
features must be present:
(1) There is a proceeding in respect of an industrial
dispute pending before the Tribunal.
(2) Conditions of service of the workmen applicable immedi-
ately before the commencement of the Tribunal proceeding are
altered.
(3) The alteration of the conditions of service is in
regard to a matter connected with the pending industrial
dispute.
(4) The workmen whose conditions of service are altered
are concerned in the pending industrial dispute.
(5) The alteration of the conditions of service is to
the prejudice of the workmen.
The first feature is admittedly present in this case
since action has been taken by the appellant in retrenching
the respondents during the pendency of the proceeding before
the Tribunal. The point that requires consideration is
whether the other features are also present in the instant
case.
Before we proceed further we should direct our attention
to the subject matter of the industrial dispute pending
before the Tribunal. It is sufficient to take note of the
principal item of the dispute, namely, the demand of the
respondents for conversion of the temporary status of their
employment into permanent. To recapitulate briefly the
appellant employed daily rated workers to do the work of
boring and hand pumps in its Water Works Section. These
workers have been in employment for over a year. They
claimed permanency in their employment on their putting in
more than 90 days’ service. They also demanded two pairs
of uniform every year, cycle allowance at the rate of Rs.
10/- per month, Provident Fund benefit and National Holidays
and other holidays allowed to the other workers. While this
particular dispute was pending before the Tribunal, the
appellant decided to entrust the work, which had till then
been performed by these workers in the Water Works Section,
to a contractor. On the employment of the contractor by the
Municipality for the self-same work, the services of the
respondents became unnecessary and the appellant passed the
orders of retrenchment. It is, therefore, clear that by
retrenchment of the respondents even the temporary employ-
ment of the workers ceased while their dispute before the
Tribunal was pending in order to improve that temporary and
insecure status.
Retrenchment may not, ordinarily, under all circum-
stances, amount to alteration of the conditions of service.
For instance, when a wage dispute is pending before a Tribu-
nal and on account of the abolition of a particular depart-
ment the workers therein have to be retrenched by the em-
ployer, such a retrenchment cannot amount to alteration of
the conditions of service. In this particular case, howev-
er, the subject matter: being directly connected with the
conversion of the temporary employment into permanent,
tampering with the status quo ante of these workers is a
clear alteration of the conditions of their service. They
were entitled during the pendency of the proceeding before
the Tribunal to continue as temporary employees hoping for a
better dispensation in the pending adjudication. And if the
appellant wanted to effect a change of their system in
getting the work 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 method of work culmi-
nating in termination of the services by way of retrenchment
in this ease has a direct impact on the adjudication pro-
ceeding. The alteration effected in the temporary employ-
ment 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.
The character of the temporary employment of the re-
spondents being a direct issue before the Tribunal, that
condition of employment, however insecure, must subsist
during the pendency of the dispute before the Tribunal and
cannot be altered to their prejudice by putting an end to
that temporary condition. This could have been done only
with the express permission of the Tribunal. It goes with-
out saying that the
936
respondents were directly concerned in the pending industri-
al dispute. No one also deny that snapping of the temporary
employment of the respondents is not to their prejudice.
All the five features adverted to above are present in the
instant case. To permit rupture in employment, in this
case, without the prior sanction of the Tribunal will be to
set at naught the avowed object of section 33 which is
principally directed to preserve the status quo under speci-
fied circumstances in the, interest of industrial peace
during the adjudication. We are, therefore, clearly of
opinion that the appellant has contravened the provisions of
section 33(1)(a) of the Act and the complaint under section
33A, at the instance of the respondents, is maintainable.
The submission of Mr. Parekh to the contrary cannot be
accepted.
That, however, does not conclude the matter. The Tribu-
nal was clearly in error in not adjudicating the complaint
on the merits. It is well settled that in a complaint under
section 32A, event if the employer is found to have contra-
vened the provisions of section 33, the Tribunal has to
pronounce upon the merits of the dispute between the par-
ties.’ 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 Government and the same has to be published under
section 17 of the Act. For the purposes of the Act the
complaint under section 33A takes, as it were, the form of a
reference of an industrial dispute by the appropriate au-
thority and the same has to be disposed of in a like manner.
The Tribunal has committed an error of jurisdiction in
declining to adjudicate the matter and to make its award on
the merits as required under the law. The High Court was,
therefore, not right in dismissing the writ application of
the appellant in limine. We should also. observe that, in
the absence of adjudication on the merits by the Tribunal,
the High Court was not right in holding that the retrench-
ment by the appellant was "a gross act of victimisation".
In the result the order of the High Court is set aside.
It follows that the award of the Tribunal ordering rein-
statement of the respondents fails and is set aside. We
should also add that the. observations of the Tribunal with
regard to the question of prosecution of the appellant
under sections 31 and 32 of the Act were not at all perti-
nent in an enquiry under section 33A and ought not to have
been made. The writ application in the High Court stands
allowed to the extent indicated. The appeal is allowed as
directed in this order. The complaint under section 33A
stands restored to the file of the Tribunal for disposal on
the merits in accordance with law and in the light of this
judgment. The appellant, however, shall pay the costs of
the respondents as ordered at the time of granting of the
Special Leave.
M.R. Appeal
allowed.
937