Rodhee, Laxmi Prasad, Pardeep And ... vs Govt. Of Delhi And Ors.
2002 Latest Caselaw 1682 Del

JUDGMENT

Vikramajit Sen, J.

1. Considerable interest has been generated in these petitions since Counsel for the parties have contended that the controversy is not covered by any directly applicable precedent. The legal issue which has arisen centres around the interpretation of Section 33 and 33A of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act). The factual matrix, as averred by the Petitioner/Workman, is that the Indian Express Union had raised Industrial Dispute No. 101/1987 and 148/1987 regarding several issues such as mil allowance etc. which were pending before the Industrial Tribunal No. I, Delhi. In January/February 1992, the Petitioners' names were allegedly transferred from the 'Pucca' to the 'Kucha' Registers maintained by the Respondents in their Newsprint Department, thereby altering the service relationship that had existed during the previous five/six years. The petitioners lodged their protest in terms of the letter dated 5.5.1992 which failed to bring about the desired remedy. The sequel was that the Petitioners filed a complaint under Section 33A of the I D Act in which their complaint, inter alia, was that while giving 16 (sic. 16%) bonus to most of the workmen, the petitioners were only given 8% bonus; while the colleagues were given weekly off days, this was denied to the petitioners; that the petitioners were not paid the same wages as their colleagues. It does not appear that the Petitioners' cause was espoused by the Labour Union despite the self-serving statement in the writ petition to the effect that the petitioners became active members of the Indian Express Employees Union which fact was allegedly not liked by the Management. It is the petitioners' case that their services were terminated in May 1993. Thereupon, the second salvo of a complaint under Section 33A, in substantially identical language but seeking the relief of their reinstatement with full back wages, was filed by the petitioners in November 1993. These pleadings have been controverter by the Respondents. They have averred that the Petitioners were employed by Messrs Royal Security Services who were providing the Respondent with newsprint handling services. It is the Management's assertion that the Petitioners were paid their wages by Royal Security Services only.

2. I do not propose to reflect on the rival factual stands in any greater detail, since the first complaint, prior to the 'dismissal' of the Petitioners has been disposed of by the Presiding Officer, Industrial Tribunal I by the Order dated 10.6.1997 and the second complaint by Order dated 28.8.1997 on the preliminary issue of their non-maintainability. It is these Orders that have been assailed in this batch of writ petitions, which have also not been filed through the aegis or initiative or espousal of any of the concerned labour unions.

3. Common law recognizes the untrammelled freedom to contract. One aspect of it is the unfettered liberty to 'hire and fire' and this has even been incorporated into the Specific Relief Act which enunciates that injunctory relief ought not to be granted if it tantamount to the enforcement of personal services. However, gradually it has been jurisprudentially accepted that where two parties are of such disparate social or economic status as would render illusory this freedom to contract, it is necessary that law should step in to effect a balance between them. Labour laws and Rent Control legislation, to cite two examples, evolved in the last century on this rationale, and came to constitute an extremely important branch of the law which has been most frequently invoked. Now, while there is still unrestricted capacity to hire, labour laws have introduced rigours on the right to fire. This has been fortified by the introduction of Section 2A in 1965, enabling a single dismissed workman to initiate an industrial dispute without the rigour of its espousal by the Union. In the case of workmen within the contemplation of the ID Act their services can be terminated on the grounds of ill-health or by way of punishment, or by their retrenchment as defined in Section 2(oo) of the Act, or by their retirement. The introduction of Section 2(oo)(bb) in 1984 merely clarifies that non-renewal of a contract of employment in terms of the contract would not amount to retrenchment. When it was found that contracts of service were structured and devised by Managements in such a manner as to defeat the protection sought to be imparted by the ID Act, Parliament again stepped in to alleviate the plight of the workmen, in the terms of the Contract Labour (Regulation and Abolition), Act 1970. There is yet another restraint placed on the capacity of the Management to terminate the services of a workman, incorporated in Section 33(2)(b) of the ID Act. It is however conditional, and intended to plug any unfair labour practice that may be adopted to subjugate the labour already embroiled in an industrial dispute.

4. I have deliberately twice mentioned the factum of the non-espousal of the Petitioner's complaints, for a reason. Section 2A was inserted into the ID Act by the Industrial Disputes (Amendment) Act, 1965 (35 of 1965) with the following stated object:-

"In construing the scope of the industrial dispute, Courts have taken the view that a dispute between an employer and an individual workman cannot per se be an industrial dispute, but it may become one if it is taken up by a union or a number of workmen making a common cause with the aggrieved individual workman. In view of this, cases of individual dismissals and discharges cannot be taken up for conciliation or arbitration or referred to adjudication under the Industrial Disputes Act, unless they are sponsored by a union or a number of workmen. It is now proposed to make the machinery under the Act available in such cases."

5. In my opinion, it is critical and imperative that the first complaint ought to have been espoused by a union, because it is intrinsically interwoven with the right of collective bargaining recognized in the trade union movement. It is the umbilical cord and the raison d'etre for the safeguards articulated in Section 33 of the Act and those extended to 'protected workmen'. If the management is given room to intimidate the workforce through relatiatory measures such as adversely changing their conditions of services or terminating the services of their union leaders, the demands collectively raised on their behalf could be jeopardised and scuttled, and eventually made sterile. While such acts of the Management cannot be permitted, it is equally important that labour should not be allowed to use these protective provisions as shields for their illegal actions. A balance must be achieved. The interest of capital and labour are poles apart and while industrial peace and harmony are conducive to the welfare of both, seldom do they tread the same path. Over a century ago, even when the laissez faire policy was quite fashionable and acceptable, it was realised that capital and labour, or employer and employee, have competing and conflicting aspirations and in the even of a conflict between them, protection is necessary for the workmen. The species of "protected workmen" was thus conceived by the legislature as it was rightly realized that the persons who took on the onerous task of fighting for the rights of their fellow workers and espousing industrial dispute would immediately incur the wrath of the employers and these persons would immediately be targeted and/or pressurized in diverse designs by the Management. Therefore, Parliament in its wisdom and experience thought it essential that these persons should be given added protection from termination of their services or their victimization by overt or covert machinations. The protection projected to them did not depend on the existence of general demands. It enured throughout the relevant period, for the simple reason that such workmen would always be the target of the Management. This very reason would hold for the entire labour force during the continuance of general demands although with reduced vigour. No purpose would be served in protecting the labour leaders if the persons who they represent and lead are not around because their services have been terminated by the Management. In respect of the parameters of insulation of protected workmen from possible victimization, i.e. Section 33(3) and (4) and Rule 61, the following principles can be distilled from the legal provisions. (A) To qualify for special protection the person should belong to a registered organisation/union connected with the establishment. This is to obviate and eradicate the propping-up of a puppet body by the Management. [Explanation to Section 33(3) and Rule 61(1)]. (B) The person concerned must also be a member of the executive or an officer bearer of such registered union [explanation of Section 33(3)]. (C) The Union must not only be a registered one, but should also be recognised as an entity connected with the establishment in accordance with rules made in this behalf. This stipulation in actual effect is 'management friendly' since outside or unconnected unions would tend to be discouraged from meddling in the affairs of the establishment. However, the scope of 'recognization' does not admit of any arbitrary discretion, and the Management is not expected to act in a malafide manner in refusing recognition to genuine a union connected with its affairs. (D) It is conceivable, and is a common occurrence, that there may exist more than one union connected with the concerned establishment, all or some of which may genuinely represent the workforce. There may well be a union which is on friendly terms with the Management or is its stooge or dummy. In all these situations, the sharing or farming out of protected workmen status is to be governed by Section 33(4) of the Act. But, quite obviously such a distribution cannot be made in favor of any entity which is not a registered trade union. Nor can the request of a genuine Union be denied/ignored by exhausting the grant of this protection by bestowing int in a malafide and self serving manner to a friendly union. The Administration should take care to ensure that protection is extended where it is needed and not dissipated by distribution to persons who would no require protection because of their friendship towards and alignment with the Management. (E) The choice by the Union of the persons nominated by it should be made with a view to protect the interests of the workforce and not to shield the nominee from punitive action for a misdemeanour already committed by him, unrelated to the labour movement/cause. (F) The particulars of the persons who are nominated by the Union for such status must be communicated to the establishment within the month of April for protection in the immediately following year. A change in the incumbency must be communicated within fifteen days of such charge. [Rule 61(1)]. (G) The employee must convey its recognition within fifteen days of the receipt of the names proposed by the Union of the period between April and March. [Rule 61(2)]. Where there are multiple unions and therefore a selection/recognition is essential, the employer must conform with Section 33(4). Where no response is made by the Management within this period, its approval should be deemed to have been accorded. (H) If a dispute arises between the employer and any registered trade union in regard to the status of 'protected workmen' it shall be referred for the decision of any Regional or Assistant Labour Commissioner (Central) or any other Officer to whom these powers are delegated. (I) A dispute cannot obviously exist if the employer does not raise any objection within the stipulated period of fifteen days from the receipt of the names forwarded by the concerned union. A dispute cannot also conceivably exist if there is only one registered trade union and the persons nominated by it do not exceed the maximum number except in the event that some or any of these nominees is/are not employee(s) of the establishment. However, if the Management has recorded its objections to the proposed names, the list would not be binding on the Management. Reference to the pronouncements of the Hon'ble Supreme Court in P.H. Kalyani v. Air France, Calcutta, , would be of advantage. (J) The 'dispute' cannot partake of a general character and include an issue extraneous to the representative character of the nominee for protected workmen status. The management may not want to recognize a virulent, aggressive or 'troublesome' trade-unionist, but if all the concomitant mentioned above are present, it does not have any choice in the matter. The only arguable exception may be where a particular person is nominated by the union so as to insulate and immunize him from proposed disciplinary action for an individual misdemeanour. But this exception may run aground if the punishment is connected with any incident of a genuine trade-unionist flavour. Since this question has not arisen in the present case, this overview should be sufficient. The entire purpose of granting protection to a trade-unionist would be defeated if the management is allowed to reject a nomination for oblique motives. The extent to which this protection should extend to the entire workmen would be explored later.

6. The relevant provisions of the ID Act are reproduced for facility of reference.

"33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings:-

(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall-

(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or

(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute.

(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute or, where there are no such standing order, 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 the commencement of such proceeding; or

(b) 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-

(a) by altering, to the prejudice of such protected workman, the conditions of service applicable to commencement of such proceedings; or

(b) 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 officer bearer] of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf.

(4) In every establishment, the number of workmen to be recognised 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 maximum number of five protected workman 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.]

33A. Special Provision for adjudication as to whether conditions of service, etc., changed during pendency of proceeding. - Where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal any employee aggrieved by such contravention, amy 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."

7. Section 33(2)(b) of the Act has been reproduced above strictly in consonance with the Gazette of India Extraordinary since these provisions, particularly the proviso thereto, have been formatted, aligned and printed differently in its sundry reproduction. Mr. Joshi has argued that the proviso operates only in respect of Section 33(2)(b) of the Act and that in the judgments of the Hon'ble Supreme Court it is invariably mentioned so. As far as the latter point is concerned, it is not that the Apex Court, while suing the phrase 'proviso to Sub-section 33(2)(b)' intended to state the the proviso was not of Section 33(2)(a) as well. If these cases are adverted to, it would be found that only Section 33(2)(b) was in discussion. Mr. Joshi has also pointed out that a semi-colon has been used after Sub-clause (a) and a colon between Sub-clause (b) and the proviso. All that can be inferred from a semi-colon is the intention to segregate two substantially similar topics from each other. If the said punctuation mark is not employed, a part of the foregoing words would have to be repeated once again or in the same context would have to be reiterated. In this case it would be the words preceding Sub-clause (a), which quite apparently have not been repeated before Sub-clause (b) in order to avoid clumsiness and prolixity. If the proviso was not to operate on the first sub-section it should have ended with a full stop and not a semi-colon. Experience has shown that the semi-colon often causes conundrums, and therefore, its use in modern writing is, abjured. For a more detailed consideration of the 'colo conundrum, reference is directed to the decision of the Constitution Bench of this Court in CWP 2031 of 2002 entitled Ms. Geetika Panwar v. Government of N.C.T. of Delhi and Ors. along with CWP 2032 entitled Delhi High Court Bar Association and Anr. v. Government of N.C.T. of Delhi and Ors, decided on 23.8.2002. The following passage form Fowlers, Modern English Usage, is interesting - "whereas the semi-colon links equal or balanced Clauses, the colon generally marks a step forward, from introducing to main theme, from cause to effect, premises to conclusion." This should bury the controversy of whether the proviso applies to both sub-clauses or not. Significantly, a colon has been used between Section 33(2)(b) and the proviso. Furthermore, the use of conjunction 'or' after the semi-colon in Sub-clause (a) introduces the second of two alternatives. It is well settled that a statutory provision should not be interpreted only on the basis of the punctuation marks found therein. The Court's duty is to impart the meaning intended by the Statute. The format of Section 33(2)(b) of the Act leaves no manner of doubt that the proviso operates on both sub-sections. Further, statues do not state the obvious, and must be so interpreted. This is precisely what would happen if Sub-section (a) is read dehors the Proviso. As I see it, Section 33(2)(a) of the Act recognizes the right of the Management to alter the conditions of service not connected with the pending industrial dispute on the condition that it obtains the post facto approval of the Authority concerned for such action taken by it. The Proviso is indubitably unhappily framed, but the words "of the action taken" found at its end should not be reduced to a surplusage or cipher. This phrase primarily bears reference to Sub-clause (a) otherwise it is rendered otiose. The Court would also have to ignore the fact that in the Gazette the Proviso is not aligned with Sub-clause (b) but on the contrary, to the main sub-section itself.

8. It is imperative not merely for the preservation of industrial harmony, but also to give industrial adjudication the best chance to succeed in a peaceful environment, that while a consideration of general demands collectively espoused is pending, status quo should be maintained. This is precisely what is sought to be achieved through Section 33 of the ID Act.

9. The distinction between the first two Sub-section of Section 33 of the ID Act is of great import. In the former of the Management has to obtain the permission, and in the latter the approval of the Tribunal/Court. The words are not synonymous. The distinction is drawn in the Law Lexicon in these words- "Ordinarily the difference between approval and permission is that in the first the act holds good until disapproved, while in the other case it does not become effective until permission is obtained." Black's law Dictionary also ascribes different meanings to these words. When two different words are used by the Legislature in such close proximity of each other, it must be presumed that this was intentional, and with the purpose of conveying that different roles were envisaged in the two sub-clauses. It must also follow logically that the course of the consideration of the industrial adjudicator would also be different in the two disparate situations. In the former i.e. under Section 33(1), the scrutiny is expected to be intense and minute since a presumption may be reasonably drawn that every management would want to dismiss the workmen directly involved with it in an industrial dispute so as to coerce, harass and intimidate the workforce into ending the ongoing agitation; hence prior permission is required. In the latter situation, the nexus of the workman with the agitation/industrial dispute is not direct and the danger of the victimization by the Management is somewhat diluted. Therefore, under Section 33(2) of the ID Act if prima facie it is evident to the industrial adjudicator that the principles of natural justice have been complied with, and a case for action against the workman exists, and no unfair labour practice has been followed, the approval would be given. Nothing more than this overview need be undertaken since a detailed consideration would be given to the rival cases if and when an industrial dispute is raised by the dissatisfied workman and referred by the Government for adjudication.

10. In Air India Corporation Bombay v. V.A. Rebellow and Anr., , the Supreme Court again emphasised the limited scope of Section 33 of the ID Act in these words:-

"The basic object of these two sections broadly speaking appears to be to protect the workmen concerned in the disputes which form the subject-matter of pending conciliation proceedings or proceedings by way of reference under Section 10 of the Act, against victimisation by the employer on account of raising or continuing such pending disputes and to ensure that those pending to proceedings are brought to expeditious termination in a peaceful atmosphere, undisturbed by any subsequent cause tending to further exacerbate the already strained relations between the employer and the workmen. To achieve this objective a ban, subject to certain conditions, has been imposed of Section 33 on the ordinary right of the employer to alter the terms of his employees' services to their prejudice or to terminate their services under the general law governing contract of employment and Section 33A provides for relief against contravention of Section 33, by way of adjudication of the complaints by aggrieved workmen considering them to be disputes referred or pending in accordance with the provisions of the Act. This ban,m however, is designed to restrict interference with the general rights and liabilities of the parties under the ordinary law within the limits truly necessary for accomplishing the above object. The employer is accordingly left free to deal with the employees when the action concerned is not punitive or mala fide or does not amount to victimisation or unfair labour practice. The anxiety of the Legislature to effectively achieve the object of duly protecting the workman against victimisation or unfair labour practices consistently with the preservation of the employer's bona fide right to maintain discipline and efficiency in the industry for securing the maximum production in a peaceful harmonious atmosphere is obvious from the overall scheme of these sections. Turning first to Section 33, Sub-section, (1) of this section deals with the case of a workman concerned in a pending dispute who has been prejudicially affected by an action in regard to a matter connected with such pending dispute and Sub-section (2) similarly deals with workman concerned in regard to matters unconnected with such pending disputes. Sub-section (1) bans alteration to the prejudice of the workman concerned in the conditions of service applicable to him immediately before the commencement of the proceedings and discharge or punishment whether by dismissal or otherwise of the workman concerned for misconduct connected with the dispute without the express permission in writing of the authority dealing with the pending proceeding. Sub-section (2) places a similar ban in regard to matters not connected with the pending dispute but the employer is free to discharge or dismiss the workman by paying wages for one month provided he applies to the authority dealing with the pending proceeding for approval of the action taken. In the case before us we are concerned only with the ban imposed against orders of discharge or punishment as contemplated by Clause (b) of the two sub-sections. There are no allegations of alteration of the complaint's term of service. It is not necessary for us to decide whether the present case is governed by Sub-section (1) or Sub-section (2) because the relevant clause in both the sub-section is couched in similar language and we do not find any difference in the essential scope and purpose of these two sub-sections as far as the controversy before us is concerned. It is noteworthy that the ban is imposed only in regard to action taken for misconduct whether connected or unconnected with the dispute. The employer is, therefore, free to take action against his workmen if it is not based on any misconduct on their part. In this connection reference by way of contrast may be made to Sub-section (3) of Section 33 which imposes an unqualified ban on the employer in regard to action by discharging or punishing the workmen whether by dismissal or otherwise. In this sub-section we do not find any restriction such as is contained in Clause (b) of Sub-sections (1) and (2). Sub-section (3) protects "protected workman" and the reason is obvious for the blanket protection of such a workman. The Legislature in his case appears to be anxious for the interest of healthy growth and development of trade union movement to ensure for him complete protection against every kind of order of discharge or punishment because of his special position as an officer of a registered trade union recognised as such in accordance with the rules made in that behalf. This explains the restricted protection in Sub-sections (1) and (2)."

11. Under Section 33(1) of the ID Act, the industrial adjudicator has to give his express permission in writing, in contradistinction to 'approval' under Section 33(2) of the ID Act, before a workman can be dismissed. He has to perform a proactive role and his complete satisfaction is essential and the dismissal of the workman is predicated on his decision. He can garner satisfaction from a perusal of the enquiry proceedings, if these had been conducted by the Management. In the event that he finds them to have deficiencies or short-coming, he can call for evidence to be led before him. Where permission is granted under Section 33(1) of the ID Act the decision is not of the Management; it is only taken at the instance of and on the request of the Management. Therefore, there may be a need to record evidence by the industrial Authority so that he can be sure and satisfied that his decision is correct. If, even in these circumstances, he is expected only to take a prima facie view [reference para 37 of Delhi Cloth & General Mills Co. v. Ludh Budh Singh, AIR 1972 SC 1037] and not 'satisfaction to the hilt' as in Section 10, a fortiori, nothing more is expected when merely approval is to be granted under Section 33(2) of the ID Act either to an alteration of the conditions of service or discharge or punish a workman for misconduct. It seems to be incongruous to assign the same role to the industrial adjudicator under both the said sub-sections of Section 33 of the ID Act. Under Sub-section (2) of the Section 33 of the ID Act, the entire exercise is post-decision, thus leading to the conclusion that approval has either to be granted or declined; there may not be any scope for the Court's calling fro evidence at the request of the Management.

12. Perhaps I have gone into too much detail on the legal aspects of protected status to the Union leaders, and on the interplay between Section 33(1) and 33(2) of the Act, and on the expectations that these Sections call for on the Industrial adjudicator. My purpose is only to underscore that it is essential to insulate the workforce from the possibility of harassment and intimidation at the hands of the Management when general demands are in the process of negotiation or adjudication. On careful cogitation on the provisions of Section 33 and 33A, my conclusion is that it ought not to make any difference even if the concerned workmen had entered employment after the general demands were raised; all that is relevant is that their service conditions should be seen to have been altered or that they should stand accused of a misconduct during the currency of a general demand or an industrial dispute. The labour force is not static and workmen join and leave from time to time. Their strength lies in collective bargaining, which necessarily involves all of them in a cohesive body regardless of when they have become a part of such body. Can it then conceivably be argued that for general demands to continue, the workforce must remain the same or substantially the same as when the demands were first raised. Quite obviously, such an argument would be absurd, just as a possible contention that there should not be any change in the leadership of the Union while the general demands are pending consideration. If this is not so, a workman who has been employed subsequent to the raising of the demands but has been elected to some office in the Union, would be vulnerable to victimisation. Alternatively, at a particular point in time the workman may only have manifested a potential for union leadership, and for this reason may have invited on himself the displeasure of the Management. Such a workman definitely deserves the protection of the statute albeit to a lesser extent than a protected workmen. A large number of workmen may have left or may have joined the industry after the initiation of the demands or the industrial dispute. It would cause industrial upheaval if the Management has the power to want only after their service conditions or to dismiss them, and thereby cripple and emasculate the agitation. This could not be the intention and purpose behind welfare legislation such as contained in the ID Act.

13. Having found that the provision applies to all workmen, the controversy is still not laid to rest, since the scope of the words "matter connected with the dispute" or not connected with it nonetheless remains to be unravelled. A detailed definition of "concerned workman" has still to be simultaneously drafted.

14. In M.D. Tamil Nadu State Transport Corporation v. Neethivilangan, Kumbakonam, 2001 (3) SCALE 702, the Hon'ble Supreme Court overruled its previous decision in Punjab Beverages Pvt. Ltd., Chandigarh v. Suresh Chand and Anr. and declared that the principle enunciated in Strawboard Manufacturing Co. v. Gobind, 1962 (Suppl.) 3 SCR 618 and Tata Iron and Steel Co. Ltd. v. S.N. Modak, constitutes the correct exposition of law. In that case the Tribunal had rejected the prayer for approval of the dismissal order contained in Management's application under Section 33(2)(b) of the Act, which orders were eventually confirmed by the Hon'ble Supreme Court. Since the Management neither reinstated the Respondent in service nor paid him any wages, the Workman filed a writ petition for reinstatement in service and for payment of wages which was allowed by the High Court. In its conclusion the Hon'ble Supreme Court observed as follows:

"16. ... In the present case as noted earlier the Tribunal on consideration of the matter held that the employer had failed to establish a prima facie case for dismissal/discharge of the workman, and therefore, dismissed the application filed by the employer on merit. The inevitable consequence of this would be that the employer was duty bound to treat the employee as continuing the service and pay him his wages for the period, even though he may be subsequently placed under suspension and in enquiry initiated against him.

17. In the facts and circumstances of the case it is our view that the High Court committed no illegality in issuing a direction to the appellant for reinstating the respondent and pay him the back wages."

15. The Hon'ble Supreme Court had thus set down two propositions of law of far reaching consequences. In the first place it had laid to rest the controversy which had prevailed after its pronouncement in Punjab Beverages case (supra) that if approval under Section 33(2)(b) of the Act had been refused by the Tribunal, the order of dismissal/discharge had to be treated as non-est. Secondly, it had enunciated that if the employer fails to take the workman back into service with consequential benefits allowed by the Court, the employee can enforce his rights by filing a writ petition. The author of the judgment in M.D. Tamil Nadu State Transport Corporation case (supra) was his Lordship Hon'ble Justice Shivraj V. Patil, who also wrote the judgment on behalf of the Constitution Bench in Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Ors., I (2002) SLR 298 = [2002] 1 LRI 447, relied upon before me by Mr. Joshi. Although the two cases were decided within six months of each other, no reference to M.D. Tamil Nadu State Transport Corporation case (supra) has been mae in the Jaipur Zila case (supra), but the ratio of both are the same. The Reference to the Constitution Bench made in the later case was accordingly answered. The Constitution Bench made the following pronouncement, and in the underlined portion thereof made a further in the underlined portion thereof made a further advancement in favor of the workman concerned:-

"The proviso to Section 33(2)(b), as can be seen from this very unambiguous and clear language, is mandatory. This apart, from the object of Section 33 and in the context of the proviso to Section 33(2)(b), it is obvious that the conditions contained in the said proviso are to be essentially complied with. Further any employer who contravenes the provisions of Section 33 invites a punishment under Section 31(1) with imprisonment for a term which may extend to six months or with fine which may extend to Rs. 1000/- or with both. This penal provision again a pointer of the mandatory nature of the proviso to comply with the conditions stated therein. To put it in other way, the said conditions being mandatory, are to be satisfied if an order of discharge or dismissal passed under Section 33(2)(b) is to be operative. If an employer desires to take benefit of the said provision for passing an order of discharge or dismissal of an employee, he has also to take the burden of discharging the statutory obligation placed on him in the said proviso. Taking a contrary view that an order of discharge or dismissal passed by an employer in contravention of the mandatory conditions contained in the proviso does not render such an order inoperative or void, defeats the very purpose of the proviso and it becomes meaningless. It is well-settled rule of interpretation that no part of statute shall be construed as unnecessary or superfluous. The proviso cannot be diluted or disobeyed by an employer. He cannot disobey the mandatory provision and then say that the order of discharge or dismissal made in contravention of Section 33(2)(b) is no void or inoperative. He cannot be permitted to take advantage of his own wrong. The interpretation of statute must be such that it should advance the legislative intent and serve the purpose for which it is made rather than to frustrate it. The proviso to Section 33(2)(b) affords protection to a workman to safeguard his interest and it is a shield against victimization and unfair labour practice by the employer during the pendency of industrial dispute when the relationship between them are already strained. An employer cannot be permitted to use the provision of Section 33(2)(b) to ease out a workman without complying with the conditions contained in the said proviso for any alleged misconduct said to be unconnected with the already pending industrial dispute. The protection afforded to a workman under the said provision cannot be taken away. If it is to be held that an order of discharge or dismissal passed by the employer without complying with the requirements of the said proviso is not void or inoperative, the employer may with impunity discharge or dismiss a workman.

Where an application is made under Section 33(2)(b) proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has to examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. if the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provision. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a compliant under Section 33A challenging the order granting approval on any of the grounds available to him. Section 33A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightaway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under Section 33A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33A and that till such time he should suffer misery of employment in spite of statutory protection given to him by the proviso to Section 33(2)(b). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b) Section 33A would be meaningless and futile. The said section has a definite purpose to serve, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted."

(Emphasis Supplied)

The advancement in the law is that whereas in the M.D. Tamil Nadu State Transport Corporation case (supra) the Court and ventured to opine that a workman could enforce his rights through a writ petition where the approval had been declined by the Authority, in the Jaipur Zila case (supra) it was also further held that he could assail the approval granted not just through the lengthy procedure of a Reference under Section 10 of the ID Act, but through the expeditious and summary remedy of Section 33A of the Act. The later case therefore is of little assistance to the contentions raised by Mr. Joshi in these petitions. Whether or not this judgment has retrospective operation, does not call for cogitation.

16. Learned Counsel for the Petitioner has argued that the main question which has arisen in these Petitions is whether the petitioners, who on their own submissions were employed after the Reference of the dispute to the Court, could nonetheless fall within the category of "concerned workman" under Section 33-A of the ID Act. Reliance has been placed on observations of a Division Bench of the Orissa High Court in the case of Khagendra Prasad Patra v. D.T.M.S.T.S. Koraput and Anr., 1976 Lab. I.C. 1260, to the effect that Clause (a) of Section 33(1) "forbids the employer to alter to the prejudice of the workman the conditions of his service only if the workman is the workman 'concerned in such dispute'. It does not debar the employer from altering the conditions of service or taking any such step in regard to any other workman. The word 'concerned' according to the Webster's Universal Unabridged Dictionary means 'interested; engaged; having a connection with;'. According to the Shorter Oxford English Dictionary it means 'interested, involved'. In order to substantiate the claim of contravention under Section 33(1)(a) the workman therefore has to show that he was concerned with the pending dispute in any of the manners envisaged by the expression. The burden of proving this will naturally be on the workman". Learned Counsel for the Respondent, on the other hand drew attention to another passage from it which reads as follows:-

"The learned counsel for the petitioner urged that since the pending dispute had been taken up by the Union of which the petitioner was also a member, the dispute was a dispute between the employer and all the members of the Union and as such attracted the provisions of Section 33(1)(a). We are unable to accept the submission. The mere fact that the petitioner was a member of the Union (assuming this to be so) will not make him a workman "concerned" in the dispute within the meaning of Section 33(1)(a). It is the dispute that the workman has to be concerned with and not only with the parties to the dispute. It is after ascertaining the nature of the pending dispute that the Court can reach the conclusion whether the workman is "concerned" with it or not.

The passages are not contradictory. The Division Bench was at pains to limelight that the pending dispute, and the involvement of the workman in it, directly or indirectly, should alone be focused on. In am in respectful agreement with this exposition of the law.

17. In the Pali Electricity Company Ltd. and Industrial Tribunal and Anr., 1959 1 L.L.J. 282, the facts before the Division Bench of the Rajasthan High Court were that some compensatory payment on account of injuries sustained by the workmen made by the Management earlier were, subsequent to the enforcement of the Employees State Insurance Act, 1948, sought to be deducted from the wages payable to the workman in the ensuing months. The workman challenge these deductions under Section 33A of the Act on the grounds that he was entitled to full wages during the period he was disabled under the prevailing conditions of service. The Division Bench found that since the words "in regard to any matter connected with the dispute" had been freshly added, it had apparently not been considered by the Tribunal. Instead of remanding the matter to the Tribunal the Court allowed the Management's application holding that there was no connection between the pending dispute,. viz. entitlement to bonus. The decisions of no assistance to the contentions advanced by Mr. Joshi, and propels me to adopt the same approach and arrive at decision that will presently be seen.

18. In the dispute concerning the Management of Premier Tyres Ltd., Kalamassery and T.K. Bhaskaran Nair, 1979 1 L.L.J. 302, the Workman had drawn the Management into litigation via Section 33A of the Act assailing his transfer, on the grievance that it would reduce his emoluments and prejudice his promotional prospects. Two industrial disputes were then pending. The Division Bench of the High Court of Judicature, Kerala, opined that it was clear that in order to attract Section 33(1)(a) of the Act the ingredients inter alia to be proved were (1) that the matter in respect of which an alteration allegedly happened must have been concerned with the pending disputes and (2) that the workman in respect of whom the alteration took place must be shown to have been concerned with such dispute. In both these cases, it was Section 33(1) which had been attracted, and the question of whether approval ought to have been taken was not considered. This approach was also adopted by a Division Bench of the Madhya Pradesh High Court in Management, Dainik Naveen Duniya, Jabalpur v. Presiding Officer, Labour Court, Jabalpur and Anr., 1991 Lab. I.C. 327. On facts, the Bench was of the opinion that the impugned transfer orders had no concern whatever with the pending dispute relating to fixation of wages. In Indian Oxygen Limited v. Udaynath Singh and Ors., 1970 II LLJ 413, the question was whether any alteration in the conditions of service had occurred because of the Management declining to sell carbide drums at concessional rates to its workmen. It was held that assuming the sale to be part of the conditions of service, it was not connected with the pending industrial dispute, and hence the complaint under Section 33A ought to have been dismissed as not maintainable.

19. The decision of the Hon'ble Supreme Court in the Bhavnagar Municipality v. Alibhai Karimbhai and Ors., , is directly germane to the issues that have been raised in the case in hand. Their Lordships observed as follows:

"10. In order to attract Section 33(1)(a), the following features must be present:

(1) There is a proceeding in respect of an industrial dispute pending before the Tribunal.

(2) Conditions of service of the workmen applicable immediately before the commencement of the Tribunal proceeding are altered. (3) The alteration of the conditions of service is in regard to a matter connected with the pending industrial dispute.

(4) The workmen whose conditions of service are altered are concerned in the pending industrial dispute.

(5) The alteration of the conditions of service is to the prejudice of the workmen.

.....

13. Retrenchment may not, ordinarily, under all circumstances, amount to alteration of the conditions of service. For instance, when a wage dispute is pending before a Tribunal and on account of the abolition of a particular department the workers therein have to be retrenched by the employer, such a retrenchment cannot amount to alteration of the conditions of service. In this particular case, however, the subject-matter being directly connected with the conversion of the temporary employment into permanent, tampering with the status quo ante of these workers is a clear alteration of the conditions of their service. They were entitled during the pendency of the proceeding before the Tribunal to continue as temporary employees hoping for a better dispensation in the pending adjudication. And if the appellant wanted to effect a change of their system in getting the work done through a contractor instead of by these temporary workers, it was incumbent upon the appellant to obtain prior permission of the Tribunal to change the conditions of their employment leading to retrenchment of their services. The alteration of the methods of work culminating in termination of the services by way of retrenchment in this case has a direct impact on the adjudication proceeding. The alteration effected in the temporary employment of the respondents which was their condition of service immediately before the commencement of the proceeding before the Tribunal, is in regard to a matter connected with the pending industrial dispute."

.....

15. That, however, does not conclude the matter. The Tribunal was clearly in error in not adjudicating the complaint on the merits. It is well settled that in a complaint under Section 33A, even if the employer is found to have contravened the provisions of Section 33, the Tribunal has to pronounce upon the merits of the dispute between the parties. The order passed in an application under Section 33A is an award similar to one passed in a reference under Section 10 of the Act. The award passed has to be submitted to the Government and the same has to be published under Section 17 of the Act. For the purposes of the Act the complaint under Section 33A takes, as it were, the form of a reference of an industrial dispute by the appropriate authority and the same has to be disposed of in a like manner. The Tribunal has committed an error of jurisdiction in declining to adjudicate the matter and to make its award on the merits as required under the law. The High Court was, therefore, not right in dismissing the writ application of the appellant in liming. We should also observe that in the absence of adjudication on the merits by the Tribunal, the High Court was not right in holding that the retrenchment by the appellant was "a gross act of victimisation."

Although the applicability of the Proviso was not directly discussed, it is apparent from the highlighted words that their Lordships assumed that it applied to Sub-clause (a) of Section 33(2), as prior permission (read post approval) of the Tribunal had not been obtained. It is also palpably obvious that the failure to obtain this approval was not canvassed before the Hon'ble Supreme Court, just as it has not been argued before me.

20. The previous decision of three Learned Judges, pronounced almost two decades earlier, in the case of Kamarhatty Company Ltd. v. Ushnath Pakrashi, 1959 II LLJ 556, appears not to have been cited before them in the Bhavnagar Municipality case (supra). The question that was considered was whether an order of reinstatement can be made on an application under Section 33A of the ID Act. The ratio of the case is that the Tribunal did not such power. What is interesting is that the Management had filed an application under Section 33 for permission to retrench the workman since he was employed in the ration shop which was closed following the end of rationing. Therefore, Mr. Joshi is not correct in contending that the proviso applies only to Section 33(2)(b) since the issue of misconduct had not arisen in that case. No doubt the provision was amended by Act 36 of 1956 with effect from 10.3.1957 but that would have no bearing on the in discussion. Ms. Bhardwaj has cited this case because it has been stated therein that "any employee aggrieved by such contravention may make a compliant." However, I am unable to subscribe to her understanding of these words as indicating that the Apex Court intended to go any further than merely referring to the particular workman involved in that dispute. The following passage is instructive and calls to be reproduced verbatim:

"In our opinion, the answer to the limited question on which the special leave has been granted can only be one in view of the language of Section 33A. That section lays down that where an employer contravenes the provisions of Section 33 during the pendency of proceedings before a tribunal, any employee aggrieved by such contravention may make a complaint in writing to the tribunal and on receipt of such complaint the tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of the Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly. It is thus clear that a complaint under Section 33A of the Act is as good as a reference under Section 10 of the Act and the tribunal has all the powers to deal with it as it would have in dealing with a reference under Section 10. It follows, therefore, that the tribunal has the power to make such order as to relief as may be appropriate in the case and as it can make if a dispute is referred to it relating to the dismissal or discharge of a workman. In such a dispute it is open to the tribunal in proper cases to order reinstatement. Therefore, a complaint under Section 33A being in the nature of a dispute referred to a tribunal under Section 10 of the Act, it is certainly within its power to order reinstatement on such complaint, if the complaint is that the employee has been dismissed or discharged in breach of Section 33."

21. The observations of the three Learned Judges of the Hon'ble Supreme Court in New India Motors (Pvt.) Ltd., New Delhi v. K.T. Morris, are pertinently pithy. One of the arguments that had been raised before their Lordships was that the words "workman concerned in such dispute" should be limited to the workman directly or actually concerned in such dispute. This argument was, however, rejected in the following terms:

"In this connection the object of Section 33 must also be borne in mind. It is plain that by enacting Section 33 the Legislature wanted to ensure a fair and satisfactory enquiry of the industrial dispute undisturbed by any action on the part of the employer or the employee which would create fresh cause for disharmony between them. During the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. That being the object of Section 33 the narrow construction of the material words used in Section 33(1)(a) would tend to defeat the said object. If it is held that the workmen concerned in the dispute are only those who are directly or immediately concerned with the dispute it would leave liberty to the employer to alter the terms and conditions of the remaining workmen and that would inevitably introduce further complications which it is intended to avoid. Similarly it would leave liberty to the other employees to raise disputes and that again is not desirable. That is why the main object underlying Section 33 is inconsistent with the narrow construction sought to be placed by the appellant on the material words used in Section 33(1)(a).

Even as a matter of construction pure and simple there is no justification for assuming that the workmen concerned in such disputes must be workmen directly or immediately concerned in the said disputes. We do not see any justification for adding the further qualification of direct or immediate concern which the narrow construction necessarily assumes. In dealing with the question as to which workmen can be said to be concerned in an industrial dispute we have to bear in mind the essential condition for the raising of an industrial dispute itself, and if an industrial dispute can be raised only by a group of workmen acting on their own or through their union then it would be difficult to resist the conclusion that all those who sponsored the dispute are concerned in it. As we have already pointed out this construction is harmonious with the definition prescribed by Section 2(s) and with the provisions contained in Section 18 of the Act. Therefore, we are not prepared to hold that the expression "workmen concerned in such dispute" can be limited only to such of the workmen who are directly concerned with the dispute in question. In our opinion, that expression included all workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute."

22. The most topically illustrative precedent as per the consensus of counsel for the parties is Bengal United Tea Company Ltd. v. Ram Lubhaya and Ors., 1962 II LLJ 37, in which while an industrial dispute pertaining to bonus was pending before the Industrial Tribunal, an employee was dismissed having been found guilty of insubordination by a domestic enquiry. We need not detain ourselves on the issue of whether he was a 'workman' or not. The employee filed an application under Section 33A praying for his reinstatement. No application had been made by the Management under Section 33(2)(b) for the approval of the dismissal. One of the points canvassed was that the employee was not a workman concerned in the dispute as he was not employed during the period for which the workmen had claimed bonus in the dispute pending before the industrial Tribunal. The view of the Hon'ble Division Bench can be gathered from this paragraph -

"I do not think that this is a correct interpretation. The entire machinery of the Act is based on the concept of collective bargaining and viewing in this light the entire scheme of the Act, it can be said that every workman is interested in the dispute between the other workmen and the employer, even though he as such may not derive any direct benefit. Take the case of a discharge. If a particular workman is discharged, primarily it is he along who is concerned in the dispute between the management and the workman as the dispute relates to his employment and non-employment, and ultimately if he is reinstated he will derive benefit out of the award. But this does not mean that other workmen cannot be said to be concerned in dispute.

If, therefore, on the date when the order of dismissal was passed the respondent 2 was a workman, he was concerned in the dispute and merely because he may not get any bonus for that period it cannot be said that he is not concerned in the dispute. The definition of the expression "industrial dispute" in Section 2(k) means a dispute between employers and workmen and it is well settled that before any dispute between the employer and his employee can be said to be an industrial dispute it has to be sponsored by a number of workmen.

It must be a dispute between the employer on the one hand and his employee acting collectively on the other. Section 18(3) of the Act provides inter alia that an award of a tribunal which has become enforceable shall be binding on

(a) all parties to the industrial dispute.

(b) all other parties summoned to appear in the proceedings as parties to the dispute unless the tribunal records the opinion that they were so summoned without proper cause, and

(d) where a party referred to in Clause (a) or Clause (b) is composed of workmen all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the dispute, and all persons who subsequently become employed in that establishment or part.

Thus even persons who are subsequently employed will be bound by the award. The whole object of enacting Section 33 is to maintain peace and harmony during the period of adjudication and if the management is given power to discharge any other workmen during the pendency of the dispute before a tribunal, it is likely to interfere with the peace and harmony of the industry and thus defeat the very object of Section 33.

The expression "workman concerned" in Section 33(2) even as a matter of construction does not mean any workman directly or immediately concerned in such dispute. Reference in this connexion may be made to the unreported decision of their lordships of the Supreme Court in the case of New Delhi Motors, Ltd. New Delhi v. K.T. Morris [C.A. No. 124 of 1959] decided on 22 March 1960 [since reported in 1960 - I L.L.J. 551] wherein it was held that the expression "workmen concerned in such dispute" in Section 33(1) cannot be limited only to such of the workmen who are directly concerned with the dispute in question and that the expression includes all workmen on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in the said dispute. Moreover this point does not seem to have been canvassed before the tribunal.

If it had been canvassed before the tribunal, the tribunal might have looked into the scope of the dispute pending before it and come to its own conclusion as to whether the respondent can or cannot be said to be concerned in the dispute. It cannot therefore, be said that the decision of the tribunal in holding that there has been non-compliance with the provision of Section 33 was manifestly erroneous."

23. Khagendra Prasad Patra v. D.T.M.S.T.S. Koraput and Anr., 1976 Lab. I.C. 1260 has also been relied upon by Ms. Bhardwaj. In the complaint filed under Section 33A all that had been alleged was that an industrial dispute in regard to the dismissal of another workman was pending between the Management and their workmen. The Division Bench referred to a number of precedents and observed that the pendency of a dispute between the employer and the Union, of which the complainant workmen was a member, would not automatically attract Section 33(1)(a). It held that since the complainant had not placed any material before the Labour Court to show that he was concerned in the pending dispute the petition deserved to be dismissed.

24. The analysis of the statutory provisions and the precedents explaining them lead to the following conclusion:

(a) The proviso to Section 33(2) qualifies both the sub-clauses. The works 'action taken' should be given the widest effect.

(b) Therefore, before a decision to alter any service conditions that are not connected with any dispute takes effect, an approval application must be filed and decided upon. The legal consequences that follow from the filing of such an application have now been authoritatively settled by the Constitution Bench of the Hon'ble Supreme Court in the Jaipur Zila Bank case (supra).

(c) While deciding such an approval application the best approach of the Authority would be to keep the entire phrase "the workman concerned in such dispute" in mind rather than just the words "workman concerned", since the latter shifts the focus from the dispute to the workman. Once the frontiers of the dispute are identified, the enquiry would shift to the workman.

(d) The date of employment is not the determinate element of the dispute. Even if the workman has been engaged subsequent to the raising of the pending industrial dispute, but its verdict would effect the conditions of service applicable at that time, such a workman would be entitled to the protection of Sub-section (2) of Section 33 of the Act. Ex hypothesi, a uniform allowance may have been declared for all workmen in 1995, and the industrial dispute may have started in the following year. A workman who had been engaged in 1997 would be affected by an alteration in the uniform allowance regardless of the fact that he had been employed on a later date. But it is conceivable that a milk allowance which had been introduced in 1996 or 1997 was withdrawn in 1998 while the dispute was still pending. Such an action would ordinarily not call for the obtaining of approval.

(e) It is also possible that although the workman had been engaged after the industrial dispute had commenced, he had actively participate din the union activities, thus creating a suspicion that the alteration of his condition of service were tainted with malafides of victimisation. He may not be a 'protected workman' but if the Management's decision is so vitiated, while prior permission would not be essential under Section 33(3) of the Act. These considerations would be relevant while giving post approval under Section 33(2) of the Act.

(f) The Authority adjudicating upon the approval of the alteration of such conditions of service must follow the approach in Lord Krishna Textile Mills v. Its Workmen, . It must be satisfied that a prima facie case exists, that the principle of natural justice have been meticulously followed and that there is no hint of victimization.

(g) Where there is apparently no connection between the pending dispute and the alteration of the conditions of service but the workman's case is that he is suffering because of his union activity, a strong supporting feature would be if his Complaint is espoused by the Union.

(h) Applying for 'approval' has the advantage of letting the adversaries known of the strength of their respective cases. If approval is declined, the Management can assail the decision through a writ petition. If approval is granted, the workman still can explore the avenue of a Reference.

25. In the case in hand, the Industrial Tribunal has incorrectly rejected the complaint on the erroneous premises that the "workman was not in the employ of management at the time the earlier dispute became pending before the Tribunal or some other authority. It is not available to any workman who joins subsequent to the dispute coming into existence". The impugned order is therefore set aside. I do not however, propose to remand the matter as I ordinarily would, since it has been argued in great detail before me. It would be proper to put an end to the lis here and now. The circumstances are that the first industrial dispute pertained to bonus for the year 1985-86 and the second was whether the workmen were entitled to the paid LTA and Milk Allowance. The first dispute would not have any impact on the complainants since they would not be entitled to the bonus. However, Mr. Joshi in the Written Submissions has candidly and fairly admitted that the second dispute would effect the complainants also. This, however, is not per se conclusively fatal to the Respondent's stand. The Tribunal should have perused the Complaints to satisfy itself that there was no nexus between the pending dispute and the alleged dismissal of the Complainants.

26. What is central to the issue is that the workman has failed to establish that it fall within the parameters laid down by the Hon'ble Supreme Court in Digwadih Colliery v. Ramji Singh, 1964 (8) FLR 456. It had been observed therein that in an application under Section 33 of the Act it is necessary that the workman should satisfy the Tribunal by proving that the nature of the dispute pending before the Tribunal applied to the dispute. The Court had taken into consideration the fact that since the workman had made no averment about the nature of the said dispute the Tribunal was in error in holding that Section 33(2) was attracted. The present petitioners have also not discharged this burden, inasmuch as they have failed to even plead some casuality or connection between the pending disputes and the alleged termination of their services. This is evident from a reading of the pleadings in both the Section 33A Complaints filed by them. Had they pleaded, for instance, that they actively participated in the agitations relating to the pending disputes, and hence had been victimized, the nexus would prima facie have been set out.

27. The delicate problem is that the Management had nol taken the approval as envisaged under Section 33(2), which I have held to be mandatory. However, this question had not been raised in the Complaint not has it been argued before me. Therefore, while absence to meet with this requirement would ordinarily be fatal, in the present case it should be overlooked primarily because even Mr. Joshi had conceded that the legal position on the issues which have been debated here, is nebulous. The forensic fortunes of a party must fairly rise and fall with the case that it has presented.

28. The Petitioners are, therefore, dismissed but there shall be no order as to costs.