5TH ISSUE PETITIONERS

To prevent the arbitrary decision of the employer changing the conditions of service
of workmen, the Hon’ble Supreme Court in Bhavnagar Municipality v. Alibhai
Karimbhai1 has settled the position of law. The following conditions have to be
followed in order to invoke the provisions of section 33;2
1) There has to be a proceeding in respect of an industrial dispute pending before
the Tribunal3,
2) The alteration has to be in the conditions of service which were applicable
immediately before the commencement of the Tribunal proceedings,4
3) The alteration in the conditions of service has to be related to a matter pending
before the Tribunal,5
4) The workmen whose conditions of service are altered must be related to the
matter,6
5) The alteration of conditions of service must be prejudicial to the workmen.7
Section 33 prescribes the exercise of various management ‘prerogatives’ vis-à-vis the
employees concerned in the dispute inasmuch as it introduces a fundamental
change in the law of the master and servant in so far as the cases falling under
the Act are concerned.”8 when industrial disputes are pendent lite before an
authority mentioned, the employers cannot exercise his right to bring a change in
the condition of service of his employees to their prejudice9.
The provision applies only when there is a pending proceeding 10, the workman
claiming protection is concerned with the proceedings, the alteration in question

1
AIR 1977 SC 1229
2
Automobile Products of India v. Rukmaji Bala (AIR 1955 SC 258)
3
Kanan Devan Hills Produce Co. v Industrial Tribunal, Ernakulam AIR 1963 Ker 44
4
B. Gopalakrishnan v. The Management Of Indian Potash, (1984) 1 MLJ 218.
5
Stanley Mendex v. Glovanola Binny Ltd., (1968) IILLJ 470 Ker.
6
Gujarat Agricultural University v All Gujarat Kamdar Karmachari Union
7
Haribhau Shinde And Anr. V. F.H. Lala Industrial Tribunal, AIR 1970 Bom 213.
8
Hotel Imperial v. Hotel Worker’s Union (1959) 2 LLJ 544 (SC); Tata Iron and Steel Co. Ltd. v. S N Modak
(1965) 2 LLJ 128 (SC)
9
Tata Iron & Steel Co Ltd v. SN Modak (1965) 2 LLJ 128 (SC); Air India Corpn. v. VA Rebellow (1972) 1 LLJ
501 (SC).
10
Municipal and Panchayat Employees Union v. State of Gujarat, (1988) 1 LLJ 309 (Guj).
 should have an effect on the condition of service of such workman and such
alteration should be in regard to any matter connected with the pending dispute11.

5TH ISSUE RESPONDENTS

That the Proposed Transaction can be completed during the pendency of the
Industrial Dispute

To prevent the arbitrary decision of the employer changing the conditions of service
of workmen, the Hon’ble Supreme Court in Bhavnagar Municipality v. Alibhai
Karimbhai12 has settled the position of law. The following conditions have to be
followed in order to invoke the provisions of section;13
1) There has to be a proceeding in respect of an industrial dispute pending before
the Tribunal14,
2) The alteration has to be in the conditions of service which were applicable
immediately before the commencement of the Tribunal proceedings,15
3) The alteration in the conditions of service has to be related to a matter pending
before the Tribunal,16
4) The workmen whose conditions of service are altered must be related to the
matter,17
5) The alteration of conditions of service must be prejudicial to the workmen.18

The provision applies only when there is a pending proceeding 19, the workman
claiming protection is concerned with the proceedings, the alteration in question
should have an effect on the condition of service of such workman and such

11
Bhavnagar Municipality v. Alibhai Karimbhai,(1977) 1 LLJ 407 (SC).
12
AIR 1977 SC 1229
13
Automobile Products of India v. Rukmaji Bala (AIR 1955 SC 258)
14
Kanan Devan Hills Produce Co. v Industrial Tribunal, Ernakulam AIR 1963 Ker 44
15
B. Gopalakrishnan v. The Management Of Indian Potash, (1984) 1 MLJ 218.
16
Stanley Mendex v. Glovanola Binny Ltd., (1968) IILLJ 470 Ker.
17
Gujarat Agricultural University v All Gujarat Kamdar Karmachari Union
18
Haribhau Shinde And Anr. V. F.H. Lala Industrial Tribunal, AIR 1970 Bom 213.
19
Municipal and Panchayat Employees Union v. State of Gujarat, (1988) 1 LLJ 309 (Guj).
 alteration should be in regard to any matter connected with the pending dispute. 20
The only way out of getting out of the ban is for the employer to approach the
authority before whom the dispute is pending, seeking its permission for the
proposed alteration.21
Failure on the part of the employee to approach the court or the tribunal under Section
33A or failure to refer the dispute under Section 10(1)(d) of the Act would
therefore disentitle the employee from reinstatement where the employer failed
and/or neglected to make the application under Section 33(2). Moreover, this
contention was upheld by the Supreme Court in the matter of Punjab Beverages
Pvt. Ltd., Chandirarh vs. Suresh Chand & Anr. [1978 (3) SCR 370].
In Jaipur Zila Sahakari Bhoomi vs. Ram Gopal Sharma & Ors. [(2002) 2 SCC 244]. While
examining the conflicting decisions, a constitution bench of the Supreme Court held that
failure to make an application under Section 33(2)(b) of the Act would amount to
noncompliance with the mandatory provision of the Act, which would render the order of the
dismissal inoperative

20
Bhavnagar Municipality v. Alibhai Karimbhai,(1977) 1 LLJ 407 (SC).
21
IDL Chemicals Karmika Sangham v. State of AP 1985 lab IC 1273 (AP).