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AN INCISIVE ANALYSIS OF SECTION 33 A OF THE

INDUSTRIAL DISPUTE ACT, 1947 AND RELATED ISSUES


LABOUR LAW 1

Submitted by:

Suyogaya Awasthy

2014127

SEMESTER V

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

Visakhapatnam

OCTOBER 2016

LABOUR LAW PROJECTPage 1


CERTIFICATE

Title of the subject: LABOUR LAW 1

Name of the faculty: Mrs. BVS SANGEETA MAAM

I, Suyogya awasthy, hereby declare that this Project titled submitted by me is an original
work undertaken by me. I have duly acknowledged all the sources from which the ideas and
extracts have been taken. The projects free from any plagiarism issue.

(Signature of the candidate)


Name: Suyogya Awasthy
Place: Visakhapatnam Roll No. 2014127
Date: 21/10/16 Semester V

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TABLE OF CONTENTS
CHAPTER 1
Introduction....................................................................................................
........03
CHAPTER 2
The Legislative
Storyline.......................................................................................06
Legislation........................................................................................................
......06
CHAPTER 3
Object of the
Section...............................................................................................07
CHAPTER 4
MODE OF APPLICATION OF SECTION
33A...................................................08
CHAPTER 5
Pendency............................................................................................................
.....09
COMPLAINT IN
WRITING..................................................................................11
Workman concerned in the pending dispute...........................................................11
Role of a trade union in representing a workman...................................................11
CHAPTER 6
ADJUDICATION UNDER SECTION
33A..........................................................12
Jurisdiction.......................................................................................................
.......12
CHAPTER 7
Relief......................................................................................................................
.15
CHAPTER 8
Award....................................................................................................................
..16
CHAPTER 9
Judicial review on
adjudication...............................................................................17
CHAPTER 10
REFORMING THE LAW-
CONCLUSION..........................................................18
BIBLIOGRAPHY .......19

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ABSTRACT
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 rationale behind legislation of Sec. 33 and Sec. 33A is to
provide protection to an employee and a tribunal has jurisdiction to do complete
justice between the parties with regards to the matter in dispute and also give
such relief as the nature of the case may require. It seeks 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.

CHAPTER 1
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 that 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.1
Social and economic justice is the ultimate ideal for any industrial adjudication 2
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.3 The essential function of industrial adjudication is to assist the

1 [i] There are 165 pieces of legislation, including 47 Central Acts on labor in India. However, labor legislation
in India can be broadly divided into three heads laws that relate to industrial relations (Industrial Disputes Act is
an example), laws that relate to wages (Payment of Wages Act is an example), and laws that relate to social
security (Payment of Bonus Act is an example).

2 [ii] Crown Aluminium Works v. Their Workmen, AIR 1958 SC 30

3 [iii] State of Mysore v. Workers of Gold Mines, AIR 1958 SC 923.

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State by helping a solution of industrial disputes. 4 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.
Noteworthy is the observation of Justice Krishna Iyer in the case of L.I.C of
India v. D J Bahadur5 where he has duly observed that the Industrial dispute is a
Benign measure which seeks to pre-empt industrial tensions, provide the
mechanics of dispute resolutions and set-up the necessary infrastructure so that
the energies of partners in productions may not be dissipated in counter-
productive battles and assurance of industrial justice may create a climate of
goodwill.
As illustrated by the preamble and long title of the Act, the Act was brought into
existence for the very purpose for providing a machinery and forum for the
investigation and settlement of disputes thereof. Furthermore the Apex Court in
the case of Dimakuchi Tea Estate v. Dimakuchi Tea State 6 has attempted to lay
down the objectives of the Act in clear terms. The court has stated that the Act
attempts to promote good relations between the employer and workmen,
secondly to investigate and settle industrial disputes, between employers and
employees, employers and workmen or workmen and workmen, with a right of
representation by registered trade union or a federation of trade unions or an
association of employees. Thirdly, the Act also aims at preventing illegal strikes
and lock outs and provides relief to workmen in the matter of lay-off and
retrenchment.
In this paper the researcher will limit himself to only particular aspect of the
Industrial Disputes Act, 1947; the aspect being Section 33A of the said Act.
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, -

4 [iv] State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610


5 [v] L.I.C of India v. D J Bahadur, (1980) Lab.I.C.1218(SC).

6 [vi] Dimakuchi Tea Estate v. Dimakuchi Tea State, 1958 AIR 353.

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(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.

In this paper the researcher will attempt to deal with the legislative history of
the Section which will include the object and the legislative background of the
Section in Part I. Following it up in Part II the researcher will deal with the
mode of application of the Section per se. Part III will deal with the ambit of
adjudication under the Section and in the last part the researcher will attempt to
put forth his suggestions as to what reformations should be brought about in the
law.

CHAPTER 2

The Legislative Storyline


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.7 The complaint that was levied by the trade unions
was that the remedy of asking for a reference under Sec.10 involved a very
lengthy procedure and this thereby led to undue delay of the remedy and left the
redress of the grievance of the employee, entirely in the discretion of the
appropriate government, because in cases of contravention of Sec.33, the

7 [vii] Through Sec.31(1) provided a penalty for the contravention of Sec.33, it was little consolation to the
aggrieved worker who had no right to have this penalty enforced. See also, Vinaya Nath v. BiharJournals Ltd
AIR 1954 Pat 1 (DB), per Ramaswami J.

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appropriate government was not bound to refer the dispute under Sec.10. The
rationale behind insertion of Section 33A therefore was to make a special
provision to adjudicate upon complaints relating to the contravention of Sec.33.
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 19848 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 will make 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.9
CHAPTER 3
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
8 [viii] Amending Act 46 of 1982 by Sec.18, wef 21 August 1984.

9 [ix] Punjab National Bank Ltd v. Their Workmen, (1959) 2 LLJ 666, 680 (SC), per Gajendragadkar J.

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adjudicate upon the dispute as if 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 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 and 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.10 This provision enables
a workman aggrieved by a wrongful order passed against him in contravention
of Sec.33, to move the authorities enumerated in it, for redress of his grievances
without recourse to Sec.10 of the Act.11
CHAPTER 4
MODE OF APPLICATION OF SECTION 33A
On contravention of Section 33
The basic question that falls to be considered by the concerned authority in any
complaint made to the tribunal under Sec. 33A is whether there has been a
contravention by the employer of the provisions of Sec.33, and if it is in case
found that there has been a contravention of the provisions of Sec.33 then the
occasion arrives for the authority to embark upon the exercise to adjudicate
about the matter so complained in the complaint, on its merits. 12 Thus, a
contravention or a violation of the provisions of Sec.33 would be the
justification for the authorities concerned, to entertain an application under
Sec.33A.13
Before giving any relief to an aggrieved employee under this section, therefore,
the authority has first to determine that the employers act fell within the ambit
of one of the blanket prohibitions of Sec.33. If the dispute pending adjudication
10 [x] Rajasthan State Road Transport Corpn v. Judge, Industrial Tribunal, Jaipur 1986 Lab IC 291, 296 (Raj)
(DB), per Lodha J.
11 [xi] Punjab Beverages Pvt Ltd v. Suresh Chand, (1978) 2 LLJ 1, 7 (SC), per Bhagwati J.
12 [xii] Stanley Mendex v. Giovanola Binny Ltd, (1968) 2 LLJ 470 (Ker), per Balakrishna Eradi J; Md Akhtar
Hussain v. State of Bihar, (1988) 1 LLJ 325 (SC). In lieu of the facts and circumstances of the case, the court
held that there was a clear case of contravention of Sec.33.

13 [xiii] Syndicate Bank Ltd v. K Ramnath V Bhat, (1967) 2 LLJ 745 (SC).

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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.14 Hence, a contravention of the provision
of Sec.33 is the foundation for the exercise of the power under Sec.33A of the
Act.15 If this issue is answered against the employee, nothing further can be
done under Sec.33A of the Act. 16 In other words, an application under Sec.33A
without proof of a contravention of Sec.33 would be incompetent.17
Contravention of the provisions of Sec.33 for the purposes of Sec.33A, takes
place where during the pendency of an industrial dispute before a tribunal when
the employer alters the working conditions of the workmen under his service in
contravention of Sec. 33(1)(a), or when the employer alters the condition of
service of a protected workman, in contravention of Sec.33(3)(a). Further the
conditions which may lead to invoking the provisions of Sec.33A may be when
the employer discharges or punishes a workman, by dismissal or otherwise, for
a misconduct connected with the pending dispute, without obtaining a prior
express permission in writing, of the authority as stipulated under Sec. 33(i)(b).
When the employer discharges or punishes a workman for any form of
misconduct not connected with the pending dispute without obtaining a prior
permission from the concerned authority then the employee can also seek relief
under this section. Thus, all the orders of punishment whether by dismissal or
otherwise imposed on the workman for any misconduct unconnected with the
dispute are covered by Sec.33(2) and would require compliance with its
provisions.18
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 months 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. 19 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,

14 [xiv] Management, Dainik Naveen Duniya, Jabalpur v. Presiding Officer, Labour Court, Jabalpur 1991 Lab
IC 327, 329-30 (MP) (DB).
15 [xv] National Power Supply Corpn Ltd v. State of Assam, (1963) 2 LLJ 10 (Assam) (DB).
16 [xvi] Equitable Coal Co Ltd v. Algu Singh, (1958) 1 LLJ 793, 796 (SC).
17 [xvii] Upper Ganges Valley Electric Supply Co Ltd v. GS Srivastava, (1963) 1 LLJ 237 (SC).

18 [xviii] Rohtas Industries Ltd v. Dhurva Narayana Pathak, 1979 Lab IC 18,22 (Pat) (DB).

19 [xix] Supra X.
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instead of waiting for a reference of the dispute being made under Sec.10.
What is to be taken into due account at this juncture is that when the termination
of the service of a workman is automatic as a result of the employees own act,
such as resigning from the employment, abandoning the job or over staying the
sanctioned leave then there would be no contravention of the provisions of
Sec.33 of the Act.20 Similarly, if the workman who complains under Sec. 33A is
not a workman concerned in the dispute then there would be no
contravention.21 Nor can a contravention take place when there is no pendency
of a proceeding before the concerned authority at the time of the alleged
contravention.22

CHAPTER 5
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.23 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.24
Before an adjudicatory authority can embark upon the adjudication on a
complaint under this section, it is imperative for it to confirm that there indeed
was a pending proceeding before it in respect of an industrial dispute. 25
Furthermore, a decision on the question whether the pending dispute was an
industrial dispute must also precede any adjudication upon a complaint under
Sec. 33A of the Act.26
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

20 [xx] National Engineering Industries Ltd v. Hanuman, (1967) 1 LLJ 883 (SC).
21 [xxi] New Indian Sugar Mills Ltd v. Krishan Ballabh Jha,(1967) 2 LLJ 210.
22 [xxii] Supra XI.
23 [xxiii] Arya Bhawan v. S Seetharaman, (1957) 2 LLJ 680.

24 [xxiv] Supra XIII.

25 [xxv] Gowrishankar Oil Mills v. Industrial Tribunal, (1962) 2 LLJ 527.


26 [xxvi] Orissa Cement Ltd v. Workmen, (1960) 2 LLJ 91 (SC).
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the pendency of the main dispute.27 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.

27 [xxvii] Prabhakar Shamrao Marathe v. Maharashtra State Electricity Board, 1975 Lab IC 697, 701.
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CHAPTER 6
COMPLAINT IN WRITING
A complaint under Sec.33A should adhere to the procedure so laid down in Rule
59 of the Industrial Disputes (Central Rules) 1957. In the absence of a
complaint with regard to any violation of condition of service causing any
detriment to his interests, the employee cannot make a grievance of the same
under Sec. 33 of the Act and the violation of Sec. 33A. 28 In order to avail the
relief so provided under Sec. 33 of the Act the following requirements have to
satisfied; firstly, the workman should be a workman within the definition of
workman under Sec. 2(s) of the Act. 29 Secondly, he should be a workman
concerned in the pending dispute30 and lastly, he should be aggrieved by the
alleged contravention of Sec. 33 by the employer.31

Workman concerned in the pending dispute


The expression workman includes all workmen on whose behalf the dispute has
been raised as well as those on who would be bound by the award to be made in
the dispute. The expression does not limit itself to merely mean a workman
directly or immediately concerned.32 However where a dispute referred is not a
collective dispute, other workmen who are not parties to the dispute are not
workmen concerned in it. The question as to whether a particular workman was
a workman concerned in the dispute is a mixed question of fact and law.33 In an
allegation so tabled before the tribunal the workman should satisfy the tribunal
by proving the nature of the dispute pending before it and that he was a
workman concerned in the pending dispute before asking the tribunal to make
finding on the question whether Sec. 33(2) has been contravened.
Role of a trade union in representing a workman
A registered trade union to which the aggrieved employee belongs has no right
to avail the relief so provided under Sec. 33A on behalf of the employee; unless
it has been expressly authorized to do so. 34 The right to complain against the
contravention of Sec. 33 has been conferred on the employee aggrieved by such

28 [xxviii] S Ayodha v. Addl Industrial Tribunal-cum-Addl Labour Court, Hyderabad 1989 Lab IC 1302, 1309.
29 [xxix] McLeod & Co v. Sixth Industrial Tribunal, AIR 1958 Cal 273.
30 [xxx] Tata Iron & Steel Co Ltd v. DR Singh, (1965) 2 LLJ 122 (SC).
31 [xxxi] Supra XV.

32 [xxxii] Bengal United Tea Co Ltd v. Ram Labhaya, (1962) 2 LLJ 37.
33 [xxxiii] Khagesh Sarkar v Tatanagar Foundry, (1962) 2 LLJ 379 (SC).
34 [xxxiv] Supra XXX.
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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.35

35 [xxxv] Ibid.
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CHAPTER 7
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.36 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.
In furtherance of the above stated objective a ban subject to certain conditions
has been imposed by Sec. 33 on the ordinary right of the employer to alter the
terms of his employees service to their prejudice or to determine their services
under the general law governing the contract of employment, and Sec. 33A
provides for a relief against complaints by aggrieved workmen considering
them to be disputes referred to or pending adjudication in accordance with the
provisions of the Act.37
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 whose 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 under Sec. 10 but can himself
prefer his complaint, which is to be treated in the same way as a dispute referred
under Sec. 10 of the Act.38
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

36 [xxxvi] Imperial Tobacco Co Ltd v. Ishwar Das, AIR 1958 All 317 (DB).

37 [xxxvii] Air India Corpn v. VA Rebellow, (1972) 1 LLJ 501.


38 [xxxviii] Hindustan General Electrical Corpn Ltd v. Bishwanath Prasad, (1971) 2 LLJ 340 (SC).
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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.39
Sec. 33 and 33A do not in any way compel the adjudicating authority to order
reinstatement as soon as it finds that there has been a violation of Sec.33. 40 The
scope of inquiry as the precedents suggest have been a very dicey subject matter
giving way to a lot of controversy and it is in lieu of such a controversy that the
case of Automobile Products of India Ltd v. Rukmaji Bala 41 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. Simply put the jurisdiction of the
authority is not only to merely adjudicate upon the matter and decree the relief
but to also to indulge into the merits of the case.
The court in the above mentioned case rejected the plea that the tribunals duty
was only to find whether there was a contravention of Sec. 33 and if it found
that there was a contravention to make a declaration regarding the same and no
further question should be considered in such an inquiry.42The question was
again raised before the court in the case of Equitable Coal Co Ltd v Algu
Singh43 in which it followed the rule laid down in Automobile Products. 44 In the
case of Punjab National Bank Ltd v. Their Workmen 45 the court was asked to
adjudicate upon the question as to whether inquiry so made under Sec. 33A is
strictly limited to determine as to whether there has been a contravention of the
provisions of Sec. 33A. The court rejected the contention so raised and
remarked that
Thus there can be no doubt that in an enquiry under Sec.33A the employee
would not succeed in obtaining an order of reinstatement merely by proving
contravention of Sec.33 by the employer. After such contravention is proved it
would still be open to the employer to justify the impugned dismissal on the
merits. There can be no doubt that if under a complaint filed under Sec.33A a
tribunal has to deal not only with the question of contravention but also with the
merits of the order of dismissal, the position cannot be any different when a
reference is made to the tribunal like the present under Sec.10.
39 [xxxix] Ibid.
40 [xl] Ibid at XXXVIII.

41 [xli] Automobile Products of India Ltd v. Rukmaji Bala, (1955) 1 LLJ 346 (SC).
42 [xlii] Ibid.
43 [xliii] Supra XVI.
44 [xliv] Supra XL.
45 [xlv] Supra IX.

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From the above mentioned dicta is quite clear that the fact of a contravention of
Sec. 33 does not make the orders of discharge or dismissal void or inoperative
thereby entitling the reinstatement of the employee. The order of dismissal can
only be annulled by the tribunal in adjudicatory proceedings either on a
reference under Sec. 10 or on a complaint under Sec. 33A. As long as the order
of discharge or dismissal is not so annulled it will be considered that the
employee is dismissed for all purposes. It is obligatory on part of the tribunal to
give a decision based on the merits of the case provided it falls within the ambit
of the section.46 The complaint under Sec. 33A must be considered by the
tribunal as a separate dispute, independently and without being in any way
influenced by its previous decision under Sec. 33 against the employer. Hence, a
complaint against the discharge of a workman in contravention of the provisions
of Sec. 33 would be adjudicated upon by the adjudicatory authorities in the
same manner as they would adjudicate upon an industrial dispute arising out of
such discharge of the workman under Sec. 11A.
CHAPTER 8
Relief
In the case of Kumarhatty Co Ltd v. Ushnath Pakrashi 47 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. Moreover in a
complaint lodged by the employee against the employer on grounds of dismissal
being in breach of Sec. 33 the adjudicatory body has the power to order a
reinstatement if it is found that there indeed has been a breach of Sec. 33.
The wordings used in Sec. 33A clearly illustrate the rationale behind insertion
of the section i.e. to provide a speedy remedy to an employee who has been
dismissed by the employer in contravention of Sec. 33. Sec. 33 saves the
distressed employee from going through the lengthy procedure of raising a
dispute and getting it referred under Sec. 10(1). Simply put otherwise Sec. 33A
cannot be invoked nor can it have any application whatsoever if the employer
complies with the provisions of Sec. 33.

46 [xlvi] Sri Ram v. Labour Court, (1970) 1 LLJ 392 (All) (DB).

47 [xlvii] Kumarhatty Co Ltd v. Ushnath Pakrashi, (1959) 2 LLJ 556.

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CHAPTER 9
Award
The words and the provisions of this Act shall apply accordingly as mentioned
in Sec. 33A signify that the adjudicating body has to submit its award to the
appropriate government. In such a scenario the provisions of Sec. 11A get
automatically attracted. The awards after being published under Sec. 17A will
have the same effect and force as awards made on a reference under Sec.10.
Noteworthy is the fact that an award under Sec. 33A will operate as res judicata
to a subsequent reference under Sec. 10 of the same subject matter.48
Judicial review on adjudication
The findings of an adjudicatory authority that the concerned workman was
guilty of the misconduct alleged against him or not is a finding of fact arrived at
by the authority on evidence and such findings cannot be interfered with by the
Supreme Court in an under appeal Art. 13649 or by a High Court in a writ
petition under Art. 226 or 227 of the Constitution. 50 If the adjudicating authority
after presiding over the matter arrives at the conclusion that the action of an
employer against his employee was justified and the breach so alleged happens
to be merely technical in nature and unless there are compelling reasons in favor
of the employee so that the court may decree an order of compensation in favor
of the employee the decision of the adjudicating authority stands. As to what
compensation would be adequate in case of a technical breach is dependent
upon the facts and circumstances of each case.51

48 [xlviii] Supra XXVI.


49 [xlix] CA Rodrick v Karam Chand Thapar & Sons Pvt Ltd, (1963) 1 LLJ 248.
50 [l] Hindustan Motors Ltd v. Mahendra Singh Dhantwal, (1965) 1 LLJ 612.
51 [li] Supra XVI.
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CHAPTER 10
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.52 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.

52
[lii] Hariba v KSRTC (1983) 2 LLJ 76, 84.

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BIBLIOGRAPHY

I. Air India Corpn v. VA Rebellow (1972) 1 LLJ 501 (1972).

II. Arya Bhawan v. S Seetharaman (1957) 2 LLJ 680 (1957).

III. Automobile Products of India Ltd v. Rukmaji Bala (1955) 1 LLJ 346
(SC) (SC, 1955).

IV. Bengal United Tea Co Ltd v. Ram Labhaya (1962) 2 LLJ 37 (1962).

V. CA Rodrick v Karam Chand Thapar & Sons Pvt Ltd. (1963) 1 LLJ 248
(1963).

VI. Crown Aluminium Works v. Their Workmen AIR 1958 SC 30. (SC,
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VII. Dimakuchi Tea Estate v. Dimakuchi Tea State 1958 AIR 353 (SC, 1958).

VIII. Equitable Coal Co Ltd v Algu Singh (1958) 1 LLJ 793 (1958).

IX. Gowrishankar Oil Mills v. Industrial Tribunal (1962) 2 LLJ 527 (1962).

X. Hariba v KSRTC (1983) 2 LLJ 76, 84 (1983).

XI. Hindustan General Electrical Corpn Ltd v. Bishwanath Prasad (1971) 2


LLJ 340 (SC) (SC, 1971).

XII. Hindustan Motors Ltd v. Mahendra Singh Dhantwal (1965) 1 LLJ 612
(1965).

XIII. Imperial Tobacco Co Ltd v. Ishwar Das AIR 1958 All 317 (DB) (1958).

LABOUR LAW PROJECTPage 19


XIV. Khagesh Sarkar v Tatanagar Foundry (1962) 2 LLJ 379 (SC) (SC, 1962).

XV. Kumarhatty Co Ltd v. Ushnath Pakrashi (1959) 2 LLJ 556 (1959).

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XIX. Md Akhtar Hussain v. State of Bihar (1988) 1 LLJ 325 (SC) (SC, 1988).

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XXI. National Power Supply Corpn Ltd v. State of Assam (1963) 2 LLJ 10
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XXII. New Indian Sugar Mills Ltd v. Krishan Ballabh Jha (1967) 2 LLJ 210
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XXIII. Orissa Cement Ltd v. Their Workmen (1960) 2 LLJ 91 (SC) (SC, 1960).

XXIV. Prabhakar Shamrao Marathe v. Maharashtra State Electricity Board 1975


Lab IC 697, 701 (1975).

XXV. Punjab Beverages Pvt Ltd v. Suresh Chand (1978) 2 LLJ 1, 7 (SC) (SC,
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XXVI. Punjab National Bank Ltd v. Their Workmen (1959) 2 LLJ 666, 680 (SC)
(SC, 1959).

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XXVII. Rajasthan State Road Transport Corpn v. Judge, Industrial Tribunal 1986
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XXVIII. Rohtas Industries Ltd v. Dhurva Narayana Pathak 1979 Lab IC 18,22
(Pat) (DB) (Pat, 1979).

XXIX. S Ayodha v. Addl Industrial Tribunal-cum-Addl Labour Court Lab IC


1302, 1309 (Hyderabad , 1989).

XXX. Sri Ram v. Labour Court (1970) 1 LLJ 392 (All) (DB). (1970).

XXXI. Stanley Mendex v. Giovanola Binny Ltd (1968) 2 LLJ 470 (Ker) (Ker,
1968).

XXXII. State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610 (SC,
1960).

XXXIII. State of Mysore v. Workers of Gold Mines AIR 1958 SC 923. (SC, 1958).

XXXIV. Syndicate Bank Ltd v. K Ramnath V Bhat (1967) 2 LLJ 745 (SC) (SC,
1967).

XXXV. Tata Iron & Steel Co Ltd v. DR Singh (1965) 2 LLJ 122 (SC). (SC,
1965).

XXXVI. Upper Ganges Valley Electric Supply Co Ltd v. GS Srivastava (1963) 1


LLJ 237 (SC) (SC, 1963).

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