Submitted by:
Suyogaya Awasthy
2014127
SEMESTER V
Visakhapatnam
OCTOBER 2016
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.
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).
6 [vi] Dimakuchi Tea Estate v. Dimakuchi Tea State, 1958 AIR 353.
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
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.
9 [ix] Punjab National Bank Ltd v. Their Workmen, (1959) 2 LLJ 666, 680 (SC), per Gajendragadkar J.
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).
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.
LABOUR LAW PROJECTPage 9
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.
27 [xxvii] Prabhakar Shamrao Marathe v. Maharashtra State Electricity Board, 1975 Lab IC 697, 701.
LABOUR LAW PROJECTPage 11
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
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.
LABOUR LAW PROJECTPage 12
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.
LABOUR LAW PROJECTPage 13
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).
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.
46 [xlvi] Sri Ram v. Labour Court, (1970) 1 LLJ 392 (All) (DB).
52
[lii] Hariba v KSRTC (1983) 2 LLJ 76, 84.
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,
1958).
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).
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).
XVIII. McLeod & Co v. Sixth Industrial Tribunal AIR 1958 Cal 273. (Cal,
1958).
XIX. Md Akhtar Hussain v. State of Bihar (1988) 1 LLJ 325 (SC) (SC, 1988).
XX. National Engineering Industries Ltd v. Hanuman (1967) 1 LLJ 883 (SC)
(SC, 1967).
XXI. National Power Supply Corpn Ltd v. State of Assam (1963) 2 LLJ 10
(Assam) (DB) (Assam, 1963).
XXII. New Indian Sugar Mills Ltd v. Krishan Ballabh Jha (1967) 2 LLJ 210
(1967).
XXIII. Orissa Cement Ltd v. Their Workmen (1960) 2 LLJ 91 (SC) (SC, 1960).
XXV. Punjab Beverages Pvt Ltd v. Suresh Chand (1978) 2 LLJ 1, 7 (SC) (SC,
1978).
XXVI. Punjab National Bank Ltd v. Their Workmen (1959) 2 LLJ 666, 680 (SC)
(SC, 1959).
XXVIII. Rohtas Industries Ltd v. Dhurva Narayana Pathak 1979 Lab IC 18,22
(Pat) (DB) (Pat, 1979).
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).