JAI NARAIN VYAS UNIVERSITY

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 ACKNOWLEDGMENT

I owe a special sense of gratitude to my Labor and

Industrial Law teacher, Vinod Chaudhary Sir,
Who taught me various topics covered in this
project. I am grateful to my parents for their
operational and financial support.
I am very glad to put on record the untiring and
cheerful contribution of my friends who helped
me a lot in finalizing this project within the
limited time frame.

THANK YOU.
 SERVICE CHANGE DURING PENDENCY OF
DISPUTES

INTRODUCTION
The object of the industrial relations legislation in general is industrial
peace and economic justice. The prosperity of any industry is very
much dependent upon its growing production. The furtherance of such
production is only possible if the industry functions uninterrupted. The
working of any industry without any hindrance largely depends upon
the state policy so framed or legislated for the very purpose. The factor
which is to be taken into consideration for the smooth functioning of
industries is the relationship between the labour and the management.
Therefore what can be safely presumed is the very fact any industrial
legislation so legislated necessarily aims at providing conditions
congenial to the industrial peace. Besides the Trade Unions Act, 1926,
the Industrial Disputes Act, is the most important Act that govern
industrial relations in India.

Social and Economic justice is the ultimate ideal for any industrial
adjudication and the basis for this ideal lies in the guiding principles of
social welfare, common good and the directive principles of state
policy enshrined in the Constitution. The essential function of industrial
adjudication is to assist the State by helping a solution of industrial
disputes. The two fold objective behind any industrial adjudication is
industrial peace and goodwill in industry so as to place labour as well
as capital on the same threshold. Industrial harmony helps in providing
a boost to the production which would invariably lead to strengthening
the economy of the nation. It is in lieu of the above mentioned that the
Industrial Disputes Act, 1947 was legislated or brought into force.
The Act gives employees the right to act together to try to improve the
terms and conditions of their employers, by forming a union, joining a
union, or otherwise. To preserve these rights, the Act sets out the rules
for union elections, collective bargaining, and more.
The Act also prohibits employers and unions from taking certain
actions that would interfere with these employee rights or with the
delicate balance the Act creates between unions and employers. These
actions are called "Unfair Labor Practices".

The Industrial Disputes Act, 1947; Section 33A of

the Act states that:

33A. 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.
LEGISLATION
Until the amendment of the Act by the Industrial Disputes (Appellate
Tribunal Act 1950, the sole remedy which an employee could avail for
a breach of his statutory right against the management was a reference
by the government under Section 10 of the Act. The complaint that was
levied by the trade unions was the remedy asking for a reference under
Section 10 involved in a very lengthy procedure and this thereby led to
undue delay of the remedy and left redress of the grievance of the
employee, entirely in the discretion of the appropriate government,
because in cases of contravention of Sec.33, the appropriate
government was not bound to refer the dispute under Sec.10. the
rational behind insertion of Section 33A therefore was to make a
special provision to adjudicate upon complaints relation to the
contravention of Sec33.

Section 33A enables an aggrieved employee to lodge a complaint in

writing, in the prescribed manner to the concerned authority. With a
subsequent amendment in the year 1984, the aggrieved employee is
entitled to make a complaint in writing of the contravention of Sec.33
by an employer to the authority before which the proceeding is
pending. But the scope of the action to be taken by the conciliatory and
adjudicatory authorities has been clearly demarcated. If the complaint
is made to a conciliatory authority all that clause(a) authorizes a
conciliation officer or the board to do is to take such a complaint ‘into
account’ in bringing about a settlement of the complained dispute.

But where the complaint is made to an adjudicatory authority i.e. an

arbitrator, labor court, tribunal or the national tribunal, such authority
has been vested with the jurisdiction to adjudicate upon the complaint,
as if it were a dispute ‘referred to or pending before it’. The
adjudication is to be governed by all the relevant provisions of the Act,
which will govern a reference made under Sec. 10. The authority makes
its award under Sec.16 which on being published under Sec.17 will be
enforceable under Sec. 17A. Thus, an aggrieved workman has been
given the option to seek redress directly from an adjudicatory authority,
in case of a contravention of Sec.33, without having to take recourse to
a reference under Sec.10 of the Act.

OBJECT OF THE SECTION

This section is designed to provide an instant remedy to a workman
aggrieved by the contravention of Sec.33. In other words, where an
employer has contravened the provisions of Sec.33, the aggrieved
workman has been given the option to make a complaint in writing to
the authority before which an industrial dispute is pending, with which
the aggrieved workman is concerned. By virtue of the Amending Act
46 of 1982, the complaint of such contravention can be made not only
to the adjudicatory authorities, but to the conciliatory authorities also.
Where the complaint is to a conciliatory authority it will take into
account such complaint in the course of mediating or promoting the
settlement of the dispute. But where the complaint is made to an
adjudicatory authority i.e. to an arbitrator, labor court, tribunal or -
national tribunal, it will adjudicate upon the dispute as is it is a dispute
referred to or pending before it. Thus, the workman is saved of the
botheration of moving the government for referring this dispute for
adjudication for referring this dispute for adjudication which it may or
may not refer.

Section 33A of the Act is attracted when the following conditions of

precedent are satisfied per se:

Firstly, that there should have been a contravention by the management

of the provisions of Sec.33 of the Act.

Secondly, that the contravention should have been during the pendency
of the proceedings before the labor court, tribunal or national tribunal,
as the case may be.

Thirdly, that the complainant should have been aggrieved by the

contravention and lastly, that the application should have been made to
the labor court, tribunal or national tribunal in which the original
proceedings are pending.
This provision enables a workman aggrieved by a wrongful order
passed against hi, in contravention of Sec.33, to move the authorities
enumerated init, for redress of his grievances without recourse to
Sec.10 of the Act

MODE OF APPLICATION OF SECTION 33A

➢ Before giving any relief to an aggrieved employee under this
section, therefore, the authority has first to determine that the
employer’s act fell within the ambit of one of the blanket
prohibitions of Sec.33. If the dispute pending adjudication has
nothing to do with the alteration in conditions of service
complained of and if the alteration is not to the prejudice of
the workman, the application under Sec.33A will be wholly
incompetent. Hence, a contravention of the provision of
Sec.33 is the foundation for the exercise of the power under
Sec.33A of the Act. If this issue is answered against the
employee, nothing further can be done under Sec.33A of the
Act. In other words, an application under Sec.33A without
proof of a contravention of Sec.33 would be incompetent.
➢ If an employer discharges or dismisses a workman, without
making an application for the permission of the authority for
the proposed action of dismissal or discharge as stipulated
under Sec. 33(1) or without making an application for
approval of the action of dismissal or discharge and without
paying one month’s wages to the workman as required by the
proviso to Sec.33(2)(b), he contravenes the provisions of
Sec.33. A withdrawal of the application before it is heard in
the forum or before any relief is decreed stands on the same
threshold as not making an application at all.[xix] Such a
violation attracts the penal consequences of Sec.31(1) of the
Act. It also entitles the aggrieved workman to make a
complaint under Sec.33A to the authorities, instead of waiting
for a reference of the dispute being made under Sec.10.
PENDENCY
Noteworthy is the fact that not every violation of Sec.33 falls under the
scope of Sec.33A. To invoke this section, it must be established that the
contravention complained of took place during the pendency of a
proceeding before any one of the authorities so mentioned above. In
simple parlance if at the time of alleging such a contravention of Sec.33
there exists no pendency of a proceeding then the provisions of Sec.
33A are not attracted.

The use of the word ‘such’ in this section does not imply that at the
time when the complaint is preferred by the aggrieved workman, the
main dispute must be pending before the authority to which the
complaint is preferred; it clearly refers to the dispute which was
referred to its adjudication and it has no reference to the pendency of
the main dispute. In other words it is sufficient that at the time of the
contravention of Sec. 33 the main dispute was pending before the
adjudicatory authority and it is not necessary that the dispute must
continue to be pending to the time of making the complaint.

ROLE OF A TRADE UNION IN

REPRESENTING A WORKMAN
A registered trade union to which the aggrieved employee belongs has
no right to avail that relief so provided under Sec. 33A on behalf of the
employee; unless it has been expressly authorized to do so. The right to
complain against the contravention of Sec 33 has been conferred on the
employee aggrieved by such contravention. It is therefore only the
employee who can avail the relief so provided in the section. The onus
to show that a union had no authority from the aggrieved workman
cannot be laid on the employer. The union must adduce evidence to
show that there has been an authority by the aggrieved workman
authorizing it to file an application.
ADJUDICATION UNDER SECTION 33A
JURISDICTION
The rationale behind legislation of Sec. 33 and Sec. 33A is to provide
protection of an employee and a tribunal has jurisdiction to do complete
justice between the parties with regard to the matter in dispute and also
give such relief as the nature of the case may require. The basic object
of these two sections broadly speaking is to protect the workmen
concerned in the disputes which form the subject matter of the pending
conciliation proceedings or proceedings by way of reference under Sec.
10 of the act and to bring about the resolution of such disputes in a
peaceful manner.

The insertion of clause (b) provides an aggrieved workman to make a

complaint to the appropriate authority who in turn will adjudicate upon
the matter as if it were a dispute referred to or pending before it for
adjudication. The respective authority under whole forum the complaint
has been filed is then required to submit its award in accordance with
the provisions of the Act to the appropriate government. Thus, a
workman aggrieved by the contravention of Sec. 33 does not have to
wait for a reference of his dispute referred under Sec. 10 of the Act.

The connotation of the term ‘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’ clearly indicate the jurisdiction of the
authority under Sec. 33A is the same as the jurisdiction of these
authorities relating to the adjudication of an industrial dispute on a
reference being made to them under Sec. 10 of the Act read with
Sec.11A. In other words an adjudicator acting under this section would
be dealing with the matter as if the question has been referred to it
under the Act, and will thus have a very wide jurisdiction and it can
deal with all aspects and modulate the reliefs that can be granted under
Sec. 11A.
SOME OF THE CASE LAWS ARE:
1. The case of Automobile Products of India Ltd v. Rukmaji
Bala[xli] provided the apex court the opportunity for the very
first time to consider the matter. The apex court in the above
mentioned case observed that the scheme of the section clearly in
illustrative terms lays down the authority to which the complaint
is to be made in respect of issues arising due to contravention of
Sec. 33 and the merits of the act or order of the employer.
2. The case of Kumarhatty Co Ltd v. Ushnath Pakrashi[xlvii] the
Apex court has categorically stated that a complaint under Sec.
33A of the Act is to be placed on an equal threshold as compared
to a complaint made under Sec. 10 and the adjudicatory body has
every right vested in it to deal with the complaint under Sec. 33A
by following the similar procedure as it would have done had the
complaint been filed under Sec. 10 of the Act. Therefore it can be
safely assumed at this juncture that the adjudicatory body is
vested with the power to decree the relief as may be permissible
in the light of Sec. 11A.

REFORMING THE LAW- CONCLUSION

The procedures so laid down in Sec. 33A which have evolved through
the dicta of the apex court over a period of time have not solved the
very purpose for which it was legislated in the first place but has rather
given birth to a state of perplexity and have given way to multiple
litigations. As has been notably put forth by a single judge of the
Karnataka High Court that Sec. 10 should be appropriately amended
thereby enabling a workman to directly approach an adjudicatory body
in regards of an industrial dispute falling under the ambit of Sec. 2A of
the Act, instead of following the tiresome procedure of reference under
Sec. 10 which happens to be an unnecessary formality. Not only that
the single judge further points out that it is of utmost necessity that Sec.
2A, 11A, 33, 33A and 33C are completely deleted from the Act and in
their place some simple provisions should be enacted which would
enable an aggrieved workman to seek redress in cases where there has
been an alteration in the condition of his service or disciplinary action
taken against him.

Furthermore the requirement of making a reference of such disputes for

adjudication to the appropriate government should also be done away
with. Furthermore the adjudicatory bodies should be vested with the
original jurisdiction to adjudicate upon such disputes by holding a
detailed inquiry into facts and circumstances of a case. The above
mentioned suggestions on implementation will help in providing a
conducive environment to solve the industrial dispute thereby leading
to the avoidance of unnecessary protracted and expensive litigation.