Industrial Disputes Act, 1947: s.33: Dismissal of workmen during pendency of Conciliation Proceedings – On 4 July 2002, workmen raised industrial dispute under s.2(k) – Dispute was taken into conciliation and proceedings were pending – Thereafter, workmen commenced a stay-in strike on 31 July 2002 – On 1 August 2002, another dispute raised by the workmen which was also taken into conciliation – Appellant-management initially suspended few workmen – Thereafter, domestic enquiry was commenced which resulted into dismissal of workmen – Following the order of dismissal, management filed an application for approval of its action of dismissal before the Assistant Commissioner of Labour under s.33(2)(b) of the ID Act – The Assistant Commissioner rejected the application for approval of dismissal on the ground that a prior approval was necessary under s.33(1)(b) before the termination and that the action of management in taking steps in pursuance of s.33(2)(b) was unlawful – High Court upheld the said order – On appeal, held: s.33 imposes a ban on the employer discharging, dismissing or punishing a workman during the pendency of conciliation proceedings and other specified authorities – However, s.33(1)(b) provides that employer may dismiss workmen with the express permission in writing of the authority before which the proceeding is pending in regard to “any matter connected with the dispute” – s.33(2)(b) deals with the power of employer to dismiss workmen in regard to “matter which is not connected with the dispute” – In the instant case, in the first conciliation proceeding, the demand of workmen was for promotional avenues, the payment of monthly salary before the seventh day of each month, drinking water and protective clothing – In the second conciliation proceedings, the workmen had claimed the status of permanency – The disciplinary enquiry was held in respect of the acts of misconduct alleged to have been committed by the workmen involving the property of the employer – These dismissal for misconduct cannot be regarded as being connected to the dispute which was raised in conciliation – Hence, the provisions of s.33(2)(b) of the ID Act would stand attracted – In this view of the matter, the order of the Assistant Commissioner was contrary to law.
Disposing of the appeal, the Court
HELD : 1.1 The basic premise underlying Section 33(1) is that during the pendency of the conciliation proceedings before a Conciliation Officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, an employer is prohibited from
(a) altering the conditions of service of the workmen; or (b) dismissing, discharging or punishing the workmen in respect of any matter or misconduct connected with the dispute save with the express permission in writing of the authority before which the proceeding is pending. Both in the context of clause (a) as well as clause (b) of sub-Section (1), the crucial words are “connected with the dispute”. Clause (a) of sub-Section (1) deals with an alteration of the conditions of service in regard to any matter connected with the dispute. Clause (b) deals with discharge or punishment, whether by way of dismissal or otherwise, of a workman for any misconduct connected with the dispute. Where the connection with the dispute exists, Section 33(1) requires the prior permission in writing of the authority before whom a proceeding is pending. [Para 9][482-H; 483-A-C]
1.2 On the other hand, Section 33(2) applies to (i) an alteration of the conditions of service in regard to a matter not connected with the dispute; or (ii) the discharge or punishment, whether by way of dismissal or otherwise, of a workman for misconduct which is not connected with the dispute. The distinction between sub-Section (1) and sub-Section (2) lies in whether the action which is proposed by the employer during the pendency of a conciliation proceeding is or is not connected with the dispute. Whether the action is connected to the dispute has to be determined on the basis of the facts of each case. [Para 10] [483-D-E]
2. When the ID Act was enacted, Section 33 imposed a ban on the employer discharging, dismissing or punishing a workman during the pendency of proceedings before the Tribunal and other specified authorities “except for misconduct not connected with the dispute”. By Amending Act 48 of 1950, Section 33 was substituted and a complete ban was imposed against discharge, dismissal or punishment of a workman during the pendency of proceedings before the Court and other specified authorities. The right of the employer to take action even for misconduct was withdrawn. Parliament being conscious of the need for discipline in industry amended the provision by substituting Section 33 by Act 36 of 1956 so as to restore to the employer the right to take punitive action in specified conditions. Where the termination for misconduct is not connected to the industrial dispute, Section 33(2)(b) recognizes the authority of the employer to initiate disciplinary action while at the same time imposing safeguards. They are intended to balance the disciplinary jurisdiction of the employer with the need to ensure that there is no victimization of the workmen. [Para 11][483-E-G; 485-B]
3. In the present case, the order of the Assistant Commissioner of Labour takes note of the fact that initially a dispute was raised on 4 July 2002 by the workmen under Section 2(k) The demand was received in the office of the Conciliation Officer and conciliation proceedings were in progress. The Union commenced a stay-in strike. Another dispute was raised on 1 August 2002 for the grant of permanency to the workmen in the factory and the conciliation proceedings were initiated on the demand. The management convened the disciplinary proceeding on the ground that the workmen had indulged in acts of vandalism involving the property of the employer. The misconduct for which the enquiry was convened had no connect with the demands by the workmen. In the first of the two conciliation proceedings, the demand of the workmen was for promotional avenues, the payment of monthly salary before the seventh day of each month, drinking water and protective clothing. In the second conciliation proceedings, the workmen had claimed the status of permanency. The disciplinary enquiry was held in respect of the acts of misconduct alleged to have been committed by the workmen involving the property of the employer. These dismissal for misconduct cannot be regarded as being connected to the dispute which was raised in conciliation, as noted above. The Assistant Commissioner came to the conclusion that the enquiry was conducted in accordance with the principles of natural justice and entered a finding of fact that there was no evidence to indicate that some of the workmen were protected workmen. The Assistant Commissioner also held that on 2 August 2002, a law and order problem had arisen as a result of which the management had initiated disciplinary proceedings. Nonetheless, the Assistant Commissioner of Labour came to the conclusion that once conciliation proceedings were initiated, prior approval under Section 33(1)(b) was necessary and this finding has been confirmed both by the Single Judge and the Division Bench of the High Court. In entering this finding, all the three fora have clearly lost sight of the distinction between sub-Section (1) and sub-Section (2) of Section 33 of the ID Act. The Single Judge noticed that the dismissal was for some other reason, yet held that Section 33 (1)(b) was attracted. There has been no independent application of mind by the Division Bench at all. Once it is held that the action of dismissal for misconduct was not connected with the dispute which was pending in conciliation, the provisions of Section 33(2)(b) of the ID Act would stand attracted. There is no dispute about the fact that there was compliance of the provisions of Section 33(2)(b), nor is there a finding to the contrary. In this view of the matter, the order of the Assistant Commissioner was contrary to law and there was an error on the part of the Single Judge and the Division Bench in affirming the order. [Paras 12, 13, 14][485-C-G; 486-A-G] Strawboard Manufacturing Company Ltd. v. Govind [1962] Supp 3 SCR 618, Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd v. Ram Gopal Sharma and Ors. AIR 2002 SC 643 : [2002] 1 SCR 284. Chartered Bank, Bombay v. Chartered Bank Employees’ Union [1960] 3 SCR 441; Tata Oil Mills Co. Ltd v. Workmen [1964] 7 SCR 555; PD Sharma v. State Bank of India [1968] 3 SCR 91; Air India Corporation v. Rebellow (1972) 1 SCC 814 : [1972] 3 SCR 606; Workmen of Sudder Office, Cinnamara v. Management of Sudder Office (1972) 4 SCC 746; Mahendra Singh Dhantwal v.
Hindustan Motors Ltd. (1976) 4 SCC 606 : [1976] Suppl. SCR 635 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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