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Industrial Dispute Act 1947

The Industries in a country play a very important role in maintaining the economy of the country and so their smooth functioning is very important. Precisely, steps have to be taken to ensure good relations between the employer and employee. In that regard, major steps have been taken.

These days, the relation has extended to government that also plays an important role between employer-employee relations. In that manner, a different statute was set up altogether to address any such dispute arising out of employer-employee relation known as the Industrial Dispute Act, 1947.

The major requirement behind drafting this act was to make provision for the investigation and settlement of industrial disputes, and for certain other purposes. The objective of the Industrial Disputes Act is to secure industrial peace and harmony by providing mechanism and procedure for the investigation and settlement of industrial disputes by conciliation, arbitration and adjudication which is provided under the statute. The main and ultimate objective of this act is Maintenance of Peaceful work culture in the Industry in India which is clearly provided under the Statement of Objects & Reasons of the statute.

So, we see that Industrial Dispute Act, 1947 performs a vital role into maintain the employer-employee relations. In a case where a dispute occurs between them, then the act comes in picture and it takes into its ambit, resolving issues of all kinds of industries.

In the known case, Western India Automobile vs. The Industrial Tribunal, it was established that, “The preamble to the Act gives a wide scope to it, when it says that it is expedient to make provision for the investigation and settlement of industrial disputes and for certain other purposes therein after appearing.

It does not limit its sphere to businesses run only by the Government or local authorities. The scheme of the Act fits in with the interpretation we are placing on the expression employer, and any other construction of it would create incongruity and repugnancy between different sections of the Act. The Act was intended to be a more comprehensive law on trade disputes than its predecessor, the Trade Disputes Act, 1929.

Hence, it is well-established that the Industrial Dispute Act, 1947 has its sole purpose, to just ensure health relations between employer and employee, and to seek for all the possible ways to settle down a dispute rising between workmen and employers, or employers and employers, or workmen and workmen.

Before going into the Section-33A, it’s important to be well aware of provisions under Section-33 because they are both inter-related.

The section-33 talks about the conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings:
  1. No employer shall, during the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before an arbitrator or a Labor Court or Tribunal or National Tribunal in respect of an industrial dispute:
    1. in regard to any matter connected with the dispute, alter the conditions of service applicable to them immediately before the commencement of such proceeding; or
    2. for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, with the express permission in writing of the authority before which the proceeding is pending.
       
  2. During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a 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-
    1. alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or
    2. 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.
       
  3. Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute:
    1. by altering the conditions of service applicable to him immediately before the commencement of such proceedings; or
    2. by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending.
      Explanation: For the purposes of this sub-section, a protected workman , in relation to an establishment, means a workman who, being a member of the executive or other office bearer] [of a registered trade union connected with the establishment, is recognized as such in accordance with rules made in this behalf.
       
  4. In every establishment, the number of workmen to be recognized as protected workmen for the purposes of sub-section (3) shall be one per cent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen.
     
  5. Where an employer makes an application to a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, within a period of three months from the date of receipt of such application][, such order in relation thereto as it deems fit:

    Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit:
    Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed.]

As we read the provisions of the Section-33, it states clearly that, no employer shall be allowed to alter the conditions of the service or punish or discharge any employee when a proceeding is in continuation. Even in case if Standing orders have been obtained or in case of any protected workmen (one % of entire workmen).

Now coming on to the Section-33A i.e.- 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, Labor Court, Tribunal or National Tribunal, any employee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner:
  1. 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
  2. to such arbitrator, Labor Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labor 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.

Section-33 A is a section that had been added by an amendment made later, to the provisions of Section-33. Before such an amendment made there was only one option left for an employee whose right under Section-33 was infringed i.e. reference by the Government as mentioned under Section- 10 of the act. The Section said that where the appropriate Government is of opinion that any industrial dispute exists, it by order in writing, be referred to a Board or to Labor court or to a tribunal for adjudication.

However, the process included in the Section-10 was a very lengthy one and caused delay of providing remedy and the remedy would also remain completely in the hands of the appropriate government. In any case where the provisions of the Section-33 were opposed or interfered, the government was not bound to refer the case under Section-10 and so Setion-33A was inserted to address the interference with the Section-33.

Hence, Section-33 gives the independence to the employee whose rights under Section-33 is infringed, to file a complaint in writing, in prescribed manner, to the concerned authority. Such an amendment was made by Industrial Disputes (Appellate Tribunal) Act 1950. And so, the employee can make a complaint in writing the authority before which the proceeding is pending.

Application of Section 33-A:
It is duly derived that the provisions under Section-33 A are completely co-independent on the Scetion-33 and its contravention. Unless and until there is no violation or any act performed, contrary to the provisions of Section-33, this section would not come into application.

In this section, the provisions are set to provide a remedy or relief to an aggrieved employee and that task is left to the respective and concerned authorities. And so, before providing the aggrieved party with a remedy, it becomes the duty of the concerned authority to make sure that whether the act done by the Employer actually falls under the ambit of the acts which are prohibited under Section-33 or not. 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.

So, in order to make Section-33A work, the provisions of the Section-33 should be interfered with. If this issue is answered against the employee, nothing further can be done under Sec.33A of the Act. In other words, an application under Sec.33A without proof of a contravention of Sec.33 would be incompetent.

When are the provisions of Section-33 considered to be contravened?
When a proceeding related to any proceeding is pending before a conciliation officer or a Board or any Labor Court or any Tribunal etc, and an employer has:
  1. Altered or changed the conditions of service related to the employee immediately before commencement of such proceedings; or
  2. Punished or discharges for any misconduct, the employee with express permission of authority who is dealing with the case.

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