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
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
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:
- 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:
- in regard to any matter connected with the dispute, alter the conditions
of service applicable to them immediately before the commencement of such
- 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.
- 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-
- 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
- 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.
- 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:
- by altering the conditions of service applicable to him immediately
before the commencement of such proceedings; or
- 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
- 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.
- 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:
- 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
- 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:
- Altered or changed the conditions of service related to the employee
immediately before commencement of such proceedings; or
- Punished or discharges for any misconduct, the employee with express
permission of authority who is dealing with the case.