Appendix A Front-page and Cover

LABOUR AND INDUSTRIAL LAWS - I PROJECT

An Incisive Analysis of Section 33A of The

Industrial Disputes Act, 1947 and Related
Issues

Submitted by
Yug Pratap Singh
Roll Number: 47
B.A. LL.B. (Hons.)
Batch: 2014-19

Of Law School,
Banaras Hindu University, Varanasi

In
November, 2017

Under the guidance of

Prof. R. K. Murali

1
 Appendix B Certificate

CERTIFICATE

The project entitled An Incisive Analysis of Section 33A of The

Industrial Disputes Act, 1947 and Related Issues" submitted to Law
School, Banaras Hindu University for LABOUR AND INDUSTRIAL LAWS - I, as
part of internal assessment is based on my original work carried out under
the guidance of Prof. R. K. Murali from July to November, 2017. The
research work has not been submitted elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the thesis has
been duly acknowledged. I understand that I myself could be held
responsible and accountable for plagiarism, if any, detected later on.

Signature of the candidate

Date: November, 2017

2
 Acknowledgement

I am using this opportunity to express my gratitude to everyone who supported me

throughout the course of this project. I am thankful for their aspiring guidance,
invaluably constructive criticism and friendly advice during the project work. I am
sincerely grateful to them for sharing their truthful and illuminating views on a
number of issues related to the project.

I express my warm thanks to Prof. R. K. Murali for his support and guidance at
Banaras Hindu University.

I would also like to thank my coordinator Prof. C. P. Upadhyay and all the people
who provided me with the facilities being required and conductive conditions for
my project.

Yug Pratap Singh

B.A. LL.B. (Hons.)

3
 INDEX

Sr. No TOPIC PG NO.

1 LIST OF ABBREVIATIONS 5
2 TABLE OF CASES 6
3 INTRODUCTION 8
4 THE LEGISLATIVE STORYLINE 10
5 MODE OF APPLICATION OF SECTION 12

33A
6 COMPLAINT IN WRITING 15
7 ADJUDICATION UNDER SECTION33A 16
8 REFORMING THE LAW-CONCLUSION 20
9 BIBLIOGRAPHY 21

4
 LIST OF ABBREVIATIONS

S. No. Abbreviation Full Form

1. Paragraph
2. & And
3. ACR Allahabad Criminal Rulings
4. Add. Additional
5. AIR All India Reporter
6. All. Allahabad
7. Cr.P.C. Code of Criminal Procedure
8. CriLJ Criminal Law Journal
10. edn. Edition
11. Exh. Exhibit
12. Honble Honourable
13. i.e. That is
14. IPC Indian Penal Code
15. LLJ Labour Law Journal
16. Ors. Others
18. SC Supreme Court
19. SCC Supreme Court Cases
20. SCR Supreme Court Reporter
21. Sec. Section
22. Sr. Senior
23. U.P. Uttar Pradesh

24. u/s Under Section

25. v. Versus

26. Vol. Volume

5
 TABLE OF CASES
1. Air India Corpn v. VA Rebellow (1972) 1 LLJ 501 (1972).
2. Arya Bhawan v. S Seetharaman (1957) 2 LLJ 680 (1957).
3. Automobile Products of India Ltd v. Rukmaji Bala (1955) 1 LLJ 346 (SC)
(SC, 1955).
4. Bengal United Tea Co Ltd v. Ram Labhaya (1962) 2 LLJ 37 (1962).
5. CA Rodrick v Karam Chand Thapar & Sons Pvt Ltd. (1963) 1 LLJ 248
(1963).
6. Crown Aluminium Works v. Their Workmen AIR 1958 SC 30. (SC, 1958).
7. Dimakuchi Tea Estate v. Dimakuchi Tea State 1958 AIR 353 (SC, 1958).
8. Equitable Coal Co Ltd v Algu Singh (1958) 1 LLJ 793 (1958).
9. Gowrishankar Oil Mills v. Industrial Tribunal (1962) 2 LLJ 527 (1962).
10.Hariba v KSRTC (1983) 2 LLJ 76, 84 (1983).
11.Hindustan General Electrical Corpn Ltd v. Bishwanath Prasad (1971) 2 LLJ
340 (SC) (SC, 1971).
12.Hindustan Motors Ltd v. Mahendra Singh Dhantwal (1965) 1 LLJ 612
(1965).
13.Imperial Tobacco Co Ltd v. Ishwar Das AIR 1958 All 317 (DB) (1958).
14.Khagesh Sarkar v Tatanagar Foundry (1962) 2 LLJ 379 (SC) (SC, 1962).

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

16.L.I.C of India v. D J Bahadur (1980) Lab.I.C.1218(SC) (SC, 1980).
17.Management, Dainik Naveen Duniya, Jabalpur v. Presiding Officer. 1991
Lab IC 327, 329-30 (MP) (DB) ( Labour Court, Jabalpur, 1991).

18.McLeod & Co v. Sixth Industrial Tribunal AIR 1958 Cal 273. (Cal, 1958).
19.Md Akhtar Hussain v. State of Bihar (1988) 1 LLJ 325 (SC) (SC, 1988).

6
20.National Engineering Industries Ltd v. Hanuman (1967) 1 LLJ 883 (SC)
(SC, 1967).
21.National Power Supply Corpn Ltd v. State of Assam (1963) 2 LLJ 10
(Assam) (DB) (Assam, 1963).
22.New Indian Sugar Mills Ltd v. Krishan Ballabh Jha (1967) 2 LLJ 210
(1967).
23.Orissa Cement Ltd v. Their Workmen (1960) 2 LLJ 91 (SC) (SC, 1960).
24.Prabhakar Shamrao Marathe v. Maharashtra State Electricity Board 1975
Lab IC 697, 701 (1975).
25.Punjab Beverages Pvt Ltd v. Suresh Chand (1978) 2 LLJ 1, 7 (SC) (SC,
1978).
26.Punjab National Bank Ltd v. Their Workmen (1959) 2 LLJ 666, 680 (SC)
(SC, 1959).
27.Rajasthan State Road Transport Corpn v. Judge, Industrial Tribunal 1986
Lab IC 291, 296 (Raj) (DB) (1986).
28.Rohtas Industries Ltd v. Dhurva Narayana Pathak 1979 Lab IC 18,22 (Pat)
(DB) (Pat, 1979).
29.S Ayodha v. Addl Industrial Tribunal-cum-Addl Labour Court Lab IC 1302,
1309 (Hyderabad , 1989).
30.Sri Ram v. Labour Court (1970) 1 LLJ 392 (All) (DB). (1970).
31.Stanley Mendex v. Giovanola Binny Ltd (1968) 2 LLJ 470(Ker, 1968).
32.State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610 (SC, 1960).
33.State of Mysore v. Workers of Gold Mines AIR 1958 SC 923. (SC, 1958).
34.Syndicate Bank Ltd v. K Ramnath V Bhat (1967) 2 LLJ 745 (SC) (SC,
1967).
35.Tata Iron & Steel Co Ltd v. DR Singh (1965) 2 LLJ 122 (SC). (SC, 1965).
36.Upper Ganges Valley Electric Supply Co Ltd v. GS Srivastava (1963) 1 LLJ
237 (SC) (SC, 1963).

7
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
adjudication2 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 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.

1
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
Crown Aluminium Works v. Their Workmen, AIR 1958 SC 30.
3
State of Mysore v. Workers of Gold Mines, AIR 1958 SC 923.
4
State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610.
5
L.I.C of India v. D J Bahadur, (1980) Lab.I.C.1218(SC).

8
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 State6 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,

(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.

6
Dimakuchi Tea Estate v. Dimakuchi Tea State, 1958 AIR 353.

9
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 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

7
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. Bihar Journals Ltd AIR 1954 Pat 1
(DB), per Ramaswami J.
8
Amending Act 46 of 1982 by Sec.18, wef 21 August 1984.

10
contravention of Sec.33, without having to take recourse to a reference under
Sec.10 of the Act.9

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 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

9
Punjab National Bank Ltd v. Their Workmen, (1959) 2 LLJ 666, 680 (SC), per Gajendragadkar J.
10
Rajasthan State Road Transport Corpn v. Judge, Industrial Tribunal, Jaipur 1986 Lab IC 291, 296 (Raj) (DB), per
Lodha J.
11
Punjab Beverages Pvt Ltd v. Suresh Chand, (1978) 2 LLJ 1, 7 (SC), per Bhagwati J.

11
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 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
12
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
Syndicate Bank Ltd v. K Ramnath V Bhat, (1967) 2 LLJ 745 (SC).
14
Management, Dainik Naveen Duniya, Jabalpur v. Presiding Officer, Labour Court, Jabalpur 1991 Lab IC 327, 329-
30 (MP) (DB).
15
National Power Supply Corpn Ltd v. State of Assam, (1963) 2 LLJ 10 (Assam) (DB).
16
Equitable Coal Co Ltd v. Algu Singh, (1958) 1 LLJ 793, 796 (SC).
17
Upper Ganges Valley Electric Supply Co Ltd v. GS Srivastava, (1963) 1 LLJ 237 (SC).

12
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, 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
18
Rohtas Industries Ltd v. Dhurva Narayana Pathak, 1979 Lab IC 18,22 (Pat) (DB).
19
Supra X.
20
National Engineering Industries Ltd v. Hanuman, (1967) 1 LLJ 883 (SC).
21
New Indian Sugar Mills Ltd v. Krishan Ballabh Jha,(1967) 2 LLJ 210.

13
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

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 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.

22
Supra XI.
23
Arya Bhawan v. S Seetharaman, (1957) 2 LLJ 680.
24
Supra XIII.
25
Gowrishankar Oil Mills v. Industrial Tribunal, (1962) 2 LLJ 527.
26
Orissa Cement Ltd v. Workmen, (1960) 2 LLJ 91 (SC).
27
Prabhakar Shamrao Marathe v. Maharashtra State Electricity Board, 1975 Lab IC 697, 701.

14
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
28
S Ayodha v. Addl Industrial Tribunal-cum-Addl Labour Court, Hyderabad 1989 Lab IC 1302, 1309.
29
McLeod & Co v. Sixth Industrial Tribunal, AIR 1958 Cal 273.
30
Tata Iron & Steel Co Ltd v. DR Singh, (1965) 2 LLJ 122 (SC).
31
Supra XV.
32
Bengal United Tea Co Ltd v. Ram Labhaya, (1962) 2 LLJ 37.
33
Khagesh Sarkar v Tatanagar Foundry, (1962) 2 LLJ 379 (SC).
34
Supra XXX.

15
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.35

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,

35
Ibid.
36
Imperial Tobacco Co Ltd v. Ishwar Das, AIR 1958 All 317 (DB).
37
Air India Corpn v. VA Rebellow, (1972) 1 LLJ 501.

16
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 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 Bala41 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.42 The 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 Workmen45 the court was asked to adjudicate upon the

38
Hindustan General Electrical Corpn Ltd v. Bishwanath Prasad, (1971) 2 LLJ 340 (SC).
39
Ibid.
40
Ibid at XXXVIII.
41
Automobile Products of India Ltd v. Rukmaji Bala, (1955) 1 LLJ 346 (SC).
42
Ibid.
43
Supra XVI.
44
Supra XL.
45
Supra IX.

17
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.

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.
Relief
In the case of Kumarhatty Co Ltd v. Ushnath Pakrashi47 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.
46
Sri Ram v. Labour Court, (1970) 1 LLJ 392 (All) (DB).
47
Kumarhatty Co Ltd v. Ushnath Pakrashi, (1959) 2 LLJ 556.

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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).
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
Supra XXVI.
49
CA Rodrick v Karam Chand Thapar & Sons Pvt Ltd, (1963) 1 LLJ 248.
50
Hindustan Motors Ltd v. Mahendra Singh Dhantwal, (1965) 1 LLJ 612.
51
Supra XVI.

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

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BIBLIOGRAPHY

Internet Resources
Google Books
www.studymode.com
www.meritnation.com

References & Further Readings

Aggarwal, S.L. Labour Relations Law in India, Atma Ram and Co, Delhi,
2010.

Choudhary, R.N., Commentary on the Workmens Compensation Act, 1923,

Orient Publishing Company, New Delhi, 2013.

Mishra, S.N., Labour and Industrial Laws, Allahabad Law

Agency,Allahabad,2017.

Sinha, G.P. and Sinha, P.R, Industrial Relations and Labour Legislation,
Oxford & IBH Publishing Co, New Delhi, 2007.

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