India: Statutory Protection For Workmen Pending Adjudication Of Disputes - The Legal Position

Last Updated: 22 September 2016
Article by Krishna Vijay Singh

The relationship of an employer and employee is inherently unequal and the Industrial Disputes Act, 1947 (the "Act") was enacted keeping this aspect in mind. The Act is a comprehensive legislation which seeks to protect the workman, who is usually in a disadvantageous situation, from unjust and illegal actions of the employer. While the provisions of the Act are clear, a study of some of the provisions of the Act and the case law around them throws light on how the management has traditionally reacted in a conflict situation, that is, where any conciliation proceedings or any other proceedings before an arbitrator, labour court or tribunal in respect of an industrial dispute is pending adjudication.

Let us consider Section 33 of the Act. Section 33 of the Industrial Disputes Act, 1947 (the "Act") imposes prohibition on the employer from altering the terms of service of its workmen to their prejudice or to terminate their services during the pendency of any proceedings, including conciliation proceedings, in respect of an industrial dispute. The rationale behind Section 33 is simple. No employer takes kindly to a workman questioning an action taken against him by the management, particularly by raising an industrial dispute. If a workman has challenged a disciplinary action taken against him, without regard to the merits, it is usual for the employer to consider such a workman as a trouble maker who the employer should rid itself from. Thus, Section 33 seeks to protect a workman from victimisation by the employer on account of him having raised an industrial dispute.

Notwithstanding the clear provisions of Section 33, it has taken a long time to settle the position of law on the same.

Before we proceed further, it is pertinent to note that sub-section (1) of Section 33 provides that without the prior approval of the authority before whom the proceedings are pending, no adverse action, including dismissal or discharge from service, can be taken by the employer against the workman concerned in regard to matter connected with the dispute. However, sub-section (2) of Section 33 provides that during the pendency of any such proceeding in respect of an industrial dispute the employer may in accordance with the standing orders applicable to the workman concerned in such dispute (or where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman) (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before commencement of such proceeding; or (b) or for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman provided that no such workman shall be discharged or dismissed unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.

Therefore, from the language employed in section 33(1), it is obvious that before an employer can discharge or dismiss workmen concerned in the pending dispute, for any misconduct connected with that dispute, he must obtain 'the express permission in writing of the authority' before which the proceeding is pending. In other word, unless the employer has obtained the express permission in writing of the authority, there can be no discharge or dismissal of the workmen. On the other hand, in cases falling under Section 33(2), the employer is required to first dismiss the workmen and then seek approval of the action already taken.

As was natural and expected, employers resorted to Section 33(2) to bye-pass the bar imposed under Section 33(1) of the Act. While an industrial dispute was still pending, a workman would be subjected to disciplinary action after internal enquiry for other alleged acts of misconduct and his services would be terminated. The employers would thereafter move an application before the authority for a post facto approval of the action of discharge or dismissal, as the case may be. It is relevant to note that an employee, having lost his means of livelihood, would usually not have the appetite to fight another legal battle. In this way, the protection envisaged under Section 33, stood defeated to some extent.

Further, in many cases employers would not make an application for the post facto approval of the dismissal or discharge of the workman. The employers, in such cases, took the position that the failure to make an application would only render the employer liable to punishment as prescribed under the Act but would not automatically lead to a reinstatement of the workman concerned since the remedy for the workman against breach of Section 33 lies under Section 33A of the Act. Failure on the part of the employee to approach the court or the tribunal under Section 33A or failure to refer the dispute under Section 10(1)(d) of the Act would therefore disentitle the employee from reinstatement where the employer failed and/or neglected to make the application under Section 33(2). Moreover, this contention was upheld by the Supreme Court in the matter of Punjab Beverages Pvt. Ltd., Chandirarh vs. Suresh Chand & Anr. [1978 (3) SCR 370].

Further, conflicting judgments were rendered as regards the date from which a workman is entitled to reinstatement where an application under Section 33(2) was rejected. One view was that the date of reinstatement has to be the date of dismissal of the workman whereas the other view was that it has to be the date when the application under Section 33(2) is rejected by the authority. Although the Supreme Court in Strawboard Manufacturing Co. vs. Gobind [1962 Supp. (3) SCR 618] and Tata Iron & Steel Co. Ltd. vs. S.N. Modak [1965 (3) SCR 411] had endorsed the view that the date of reinstatement has to be the date of dismissal, however, in the matter of Punjab Beverages Pvt. Ltd a contrary view was taken by the Supreme Court.

The aforesaid loopholes were plugged and the conflicting views were clarified by the Supreme Court of India in Jaipur Zila Sahakari Bhoomi vs. Ram Gopal Sharma & Ors. [(2002) 2 SCC 244]. While examining the conflicting decisions, a constitution bench of the Supreme Court held that failure to make an application under Section33(2)(b) of the Act would amount to noncompliance with the mandatory provision of the Act, which would render the order of the dismissal inoperative. The contention that the order of the punishment/dismissal would not become void or inoperative till the same was set aside under Section 33A was rejected by the Supreme Court. The court held that such an approach of employer destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice and/or harassment because of pendency of industrial dispute.

In so far as the question regarding the order of dismissal becoming ineffective from the date it was passed or from the date of non-approval of the order passed under Section 33(2)(b) is concerned, the Supreme Court endorsed the view taken in the case of Strawboard Manufacturing Co and Tata Iron & Steel Co. Ltd. and stated that the view expressed in Punjab Beverages Pvt. Ltd on the question is not the correct. In view of the above, the Court held that if the approval is not given to the employer under Section 33(2)(b), it will have to be deemed that the order of discharge or dismissal had never been passed. In other words, the relationship between employer and the workman shall come to an end de jure only when the authority grants approval. However, if approval is not given, nothing more is required to be done by the employee, as the employee shall be deemed to have continued in service entitling him to all the benefits available. The court further held that this being the position there is even no need for the authority to pass a separate or specific order for reinstatement of the workmen.

Originally published by www.humancapitalonline.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.