Introduction
The Industrial Disputes Act of 1947, which covers the entire nation of India, governs labour laws related to trade unions and individual workers in any industry within the Indian mainland. This act was enacted on March 11, 1947, and came into effect on April 1, 1947.
The main objective of the Industrial Disputes Act 1947 is to provide for solving the industrial disputes and maintain peace and harmony in the industrial sphere by providing mechanism and strict procedure for the investigation and settlement of industrial disputes by conciliation, arbitration and adjudication which is provided under the statute. “Fostering a harmonious work environment in the Indian industrial sector” is the ultimate objective of this act. It regulates the industrial dispute between employers and employees.
Section 33
In the Indian industrial sphere the employer has a dominant position and may tend to exploit the right of the employees at will, by changing the working conditions or altering the terms of the works and in many more ways. With a view to prevent such authoritativeness Section 33 intervenes and lays down conditions for the employer and protects the workmen form their mala fide actions.
Section 33 serves a dual purpose. First, it aims to prevent employers from deterring workers from taking legal action against them through unfair dismissal or adverse changes in their employment status. Essentially, Section 33 protects workers from harassment, victimization, or bad-faith actions by employers in response to the workers raising industrial disputes.
Secondly, it seeks to maintain the existing situation to ensure that ongoing proceedings are concluded swiftly and peacefully, without being disrupted by new conflicts between the involved parties. This section is based on the doctrine of ‘lis pendens’ or the legal maxim ‘ut lite pendent nihil innovator’.
Prohibition on Employers
There are certain prohibitions that are placed on the actions of the employers during the continuation of a dispute by Section 33(1) of the Act. The section is bifurcated in two sub clauses, (a) and (b). The provisions are as follows :-
1. The non-alteration of the terms of service
Section 33(1)(a) of the Industrial Disputes Act 1947 strictly prohibits the employers from terminating their employees’ services when there is an industrial dispute pending before the appropriate authority. The duration spanning from the initiation to the conclusion of conciliation, adjudication, or arbitration proceedings is referred to as the period of pending proceedings. This was affirmed by the court in the case of Karnal Kaithal Co-operative Transport Society v. State of Punjab, 1958.[1]
The Conciliation officer or Board, Arbitrator, Labour Court, Tribunal, or National Tribunal are the authorities with jurisdiction over industrial disputes.
For availing the protection of the Section by the workman –
- Any alteration of the services made by the employer must pertain to the subject of the ongoing proceedings. Furthermore, these changes should be detrimental to the interests of the workman. If the alteration are in favour of the workman then they would not be prohibited.
- The workman must be involved in the ongoing proceedings.
- Furthermore, the alteration should impact the conditions of service that were applicable to the workman before the initiation of such proceedings.
- The action of the employer should have been taken without the express permission in writing of the authority before which the dispute is pending.\
Probitted to discharge or punish
In case of any misconduct of the workman connected with the dispute, Section 33(1)(b) prohibits the employer form taking disciplinary action against the workman concerned. The Section requires that the action taken should be discharge or punishment by way of dismissal or otherwise.
This Section acts as a safeguard to the workman concerned with the dispute. The discharge should be related to any misconduct associated with the pending dispute. In the case of Sasa Musa Sugar Works (P) Ltd. V. Shobrati Khan and others (1959)[2] the apealant had issued notices for dismissal of forty eight employes who participated in a go slow(intentionally delaying work). The tribunal rejected the application for the dismissal of workers, but the Supreme Court later upheld the appeal and permitted the dismissal of workers on finding sufficient evidence of misconduct. The court held that the Tribunal must grant permission under Section 33 when it is convinced of the workmen’s misconduct.
However, if the employer has an explicit written permission from the authority overseeing the pending proceedings, he has the right to discharge or discipline the workmen. The employer can also suspend the involved workman based on the inquiry’s findings without seeking permission. Therefore, the restrictions on the employer are not absolute.
When discharge or punishment is allowed to the employer
Section 33(2) is quite the opposite of section 33(1), it addresses changes in the conditions of service and the discharge or dismissal of a workman involved in an ongoing dispute. However, this provision applies when such actions pertain to matters that are not related to the pending dispute. It is further divided into two sub clauses:
Section 33(2)(a) states that during the pendency of a proceeding regarding industrial dispute the employer can alter the conditions in any matter which is not connected to the dispute, also he can change the conditions of service of the workman immediately before the commencement of a proceeding.
Section 33(2)(b) states that the employer can discharge or punish the workman by way of dismissal or otherwise for misconduct of the workman, such matter certainly must not be connected to the pending dispute.
The proviso of Section 33(2)(b) requires two conditions to be fulfilled in order to exercise the powers to discharge or dismissal. The conditions are:
i) The workman concerned should be paid wages for one month, which would include all prior wages plus the wages for the upcoming month. The court observed in Prabhakar H. Manjare And Another vs Indian Telephone Industries Limited, 1998[3], the application of approval was denied and held illegal upon the grounds that one month’s back wages were not paid.
ii) An application must be made before the appropriate authority for approval of the action taken by the employer.
Protected Workman
Section 33(3) was added in the Industrial Disputes Act 1947, by the way of amendment in 1956. This section developed a new class of “protected workmen”.
The explanation to Section 33(3) defines “protected workman” a workman who is a member of the executive or other office bearer of a registered trade union connected to the establishment, In the case of Union of India v. Rajasthan Annushakti Karamchari Union Rawatbhata (1976)[4], a protected workman is defined as an individual who has immunity from dismissal or discharge during adjudication or conciliation proceedings connected to an ongoing industrial dispute between the workmen and the employer. This case examined whether the time limit specified in Rule 61 was mandatory or merely advisory. The court concluded that the time limit was indeed mandatory.
Rule 61 of the Industrial Disputes (Central) Rules pertains to the identification and allocation of protected workmen. It encorporates four sub-rules, which are-
1. The names and addresses of office bearers should be communicated by every registered trade union to the employer for the recognition of a protected workman by 30th April of every year.
2. The employer is required to declare the list of the protected workman within 15 days of receiving the letter from the union.
3. The dispute regarding the matter of registered protected workmen between employer and the registered trade union is to be referred to Regional Labour Commissioner or Assistant Labour Commissioner (Central).
4. It prescribes that the number of protected workman is to be one percent of the total number of workmen employed- minimum of five and a maximum of one hundred.
Number of protected workmen
Section 33(4) of the Act talks about the number of protected workmen, it should amount to one percent of total workmen employed therein subject to a minimum number of five and a maximum number of one hundred. The government can make laws for the functioning of the aforesaid purpose.
Approval under sub section (2)
Section 33(5) states that if in the case of an application made to the conciliation officer, Board , [an arbitrtator], a labour court, Tribunal or National Tribunal under the proviso of sub setion (2) by the employer for the approval of an action taken by him then the concerned authority shall without any delay hear such application and pass (within a period of three months from the date of receipt of such application) an order in relation to the matter as it deems fit.
It is stated in the proviso that if the concerned authority deems it necessary to extend the period to pass the order, then it shall record in writing the reason for such extension and the period it may think fit. It is further provided that no proceedings before any such authority shall lapse merely on the ground that any period specified in the sub section had expired without any proceeding completed or without recoding the reason for it.
[1] The Karnal Kaithal Co-Operative … vs The State Of Punjab And Anr. 1958 AIR1959P&H75
[2] M/S. Sasa Musa Sugar Works (P) Ltd vs Shobrati Khan And Others 1959 AIR 923, 1959 SCR SUPL. (2) 836
[3] Prabhakar H. Manjare And Another vs Indian Telephone Industries Limited 1998 ILR1998KAR2840
[4] Union of India v. Rajasthan Annushakti Karamchari Union Rawatbhata 1976WLN150
Author: Abhinav Pal is a 4th-semester BALLB(Hons.) student at the University of Allahabad.
