Himachal Pradesh High Court
M/S Zen Technologies Ltd vs State Of Himachal Pradesh And Others on 30 May, 2025
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.3633 of 2022 a/w
CWP No.3157 of 2022
Decided on: 30.05.2025
CWP No.3633 of 2022
M/s Zen Technologies Ltd
... Petitioner
Versus
State of Himachal Pradesh and others
... Respondents
___________________________________________________________________
CWP No.3157 of 2022
Arun Thakur and others
...Petitioners
Versus
M/s Zen Technologies Limited
...Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes
____________________________________________________ _
For the petitioners : Mr. Anup Rattan, Senior Advocate,
with Mr. Arun Kaushal, Advocate, in
CWP No.3633 of 2022.
Mr. Suneel Awasthi, Advocate, for the
petitioners, in CWP No.3157 of 2022.
For the respondent : Mr. Pushpinder Jaswal, Additional
Advocate General, for respondent-
State, in CWP No.3633 of 2022.
Mr. Suneel Awasthi, Advocate, for
respondents No.3 to 9, in CWP
No.3633 of 2022.
Mr. Rajesh Kashyap, Advocate, for the
respondent, in CWP No.3157 of 2022.
Ajay Mohan Goel, Judge (Oral)
By way of this writ petition, the petitioner-Company has
challenged order dated 13.01.2022, passed by the learned Presiding
1 Whether reporters of the local papers may be allowed to see the judgment?
Judge, H.P. Industrial Tribunal-cum-Labour Court, Shimla, in
application No.40 of 2018, titled Arun Thakur and others versus
M/s Zen Technologies Ltd., vide which the complaint filed by the
complainants therein under Section 33A of the Industrial Disputes
Act, 1947 (hereinafter referred to as the Act), has been decided by
the learned Labour Court in the following terms:-
"As a sequent effect to my findings on issues
No.1 to 3 above, the application filed under Section
33A of the Act is allowed. Resultantly, the each of the
petitioner is held entitled to lump sum compensation
of Rs.75,000/- (Rs. Seventy Five Thousand only) each
to the applicants). The respondent directed to pay the
aforesaid amount to each petitioner as compensation
in lieu of their illegal termination. The amount shall be
paid within three months of this order failing which
the respondent shall pay interest @ 9% per annum till
the realization of the amount.
Let a copy of this award/order be also
communicated to the appropriate government for its
due publication in the official gazette forthwith. File
after completion be consigned to records.
Ordered accordingly."
2. Learned Senior Counsel appearing for the petitioner-
Company argued that the impugned order is not sustainable in the
eyes of law for the reason that the learned Labour Court erred in not
appreciating that no complaint under Section 33A of the Industrial
Disputes Act was maintainable in the facts of the case as the action
of the petitioner-Company which was assailed in terms of the
complaint filed under Section 33A of the Industrial Disputes Act was
not governed by the provisions of Section 33 of the Industrial
Disputes Act, 1947. Learned Senior Counsel submitted that in the
present case, the application filed under Section 33A of the
Industrial Disputes Act was filed on the ground that the
complainants were workers with the petitioner-Company, who had
raised a demand notice before Labour Inspector Nalagarh raising
issues regarding increasing their wages/bonus, increments, gratuity
and payment of dearness allowances etc. After the filing of the
demand notice, the company transferred the complainants to
Hyderabad on the pretext of closure of their Unit at Nalagarh. The
transfer order was issued to pressurize the complainants to
withdraw the demand notice. This act of the Company as per the
complainants was brought to the notice of Labour Inspector.
However, during the pendency of conciliation proceedings before
Labour Inspector, complainants received retrenchment notices
which were sent by the respondent-Company dated 29.08.2017.
Said act of the Company was assailed by way of the application filed
under Section 33A of the Industrial Disputes Act. Learned Senior
Counsel submitted that it is the own case of the complainants
/workers that their services were retrenched by the Company. He
drew attention of the Court to Section 33 of the Act and submitted
that the provisions of Section 33 of the Act were attracted only where
a workmen was "discharged" or "dismissed", whereas, in the present
case, as the workmen were "retrenched" by following the process,
neither Section 33 nor Section 33A were attracted and this extremely
important aspect of the matter was ignored by the learned Labour
Court while passing the impugned order.
3. On the other hand, leaned counsel for the private
respondents argued that the retrenchment of the services of the
workmen was akin to discharge or dismissal and, therefore, there
was no infirmity in the order passed by the learned Labour Court.
He stressed that the retrenchment of the services of the workmen
was an act of punishment and the workers in fact stood dismissed
from service and the same was duly covered under provisions of
Section 33 of the Act. Accordingly, he prayed that the present
petition being devoid of any merit be dismissed.
4. I have heard learned counsel for the parties and have
also carefully gone through the order under challenge as well as
documents appended with the writ petition.
5. Before proceedings further, at this stage, it is relevant to
refer to Section 33 of the Act. Section 33(1) and Section 33(2), which
are relevant for the purpose of the decision of this case, are being
quoted hereinbelow:-
"(1) During the pendency of any
conciliation proceeding before a conciliation officer or
a Board or of any proceeding before 66[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,
save 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 66[or, where
there are no such standing orders, in accordance with
the terms of the contract, whether express or implied,
between him and the workman],--
(a) alter, in regard to any matter not connected with
the dispute, the conditions of service applicable to
that workman immediately before the commencement
of such proceeding; or
(b) for any misconduct not connected with the
dispute, or 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."
6. In terms of Sub-section(1) of Section 33 of the Act,
during the pendency of any conciliation proceedings before a
Conciliation Officer or a Board or of any proceeding before an
arbitrator or a Labour Court etc., in respect of an industrial dispute,
no employer shall 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 for any misconduct
connected with the dispute, discharge or punish, whether by
dismissal or otherwise, any workmen concerned in such dispute,
save with the express permission in writing of the authority before
which the proceeding is pending. Sub-section (2) of Section 33 of the
Act further provides that during the pendency of any such
proceeding in respect of an industrial dispute, the employer may, in
accordance with the standing orders applicable to 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.
7. According to the learned counsel for the workmen, Sub-
section(2) of Section 33 of the Act was violated by the Company
while retrenching the workmen.
8. Having carefully perused the statutory provisions of
Sub-section(2) of Section 33 of the Act, this Court is of the
considered view that this Subsection is only attracted when the
services of a workmen is either discharged or the workmen is
dismissed by the employer. In this case, the workmen were
retrenched. They were neither discharged nor were they dismissed.
9. A perusal of the complaint filed under Section 33A of the
1947 Act demonstrates that it was averred in the same that a
perusal of retrenchment notice would show that the same was not
retrenchment but removal of the services of the complainants for not
joining the transferred station at Hyderabad. It was also averred in
the complaint that as the removal of the complainants was during
the pendency of the proceedings before the Labour Inspector,
therefore, the said removal was against the provisions of Section 33
of the 1947 Act, more so, when the removal was without holding any
inquiry and without issuance of any show cause to the workmen. It
was also averred therein that the complainants were forced to
encash the cheques which were handed over to them alongwith the
retrenchment notice. Reply to the said compliant demonstrates that
it was specifically mentioned therein by the employer Company that
the provisions of Section 33A of the 1947 Act were not attracted in
the facts of the case and that the retrenchment was by following the
provisions relating to retrenchment provided in the 1947 Act.
10. Section 2(oo) of the 1947 Act incidentally defines
"retrenchment" and Section 2(oo) of the same defines retrenchment
as under:-
Section 2(oo)
"Retrenchment" means the termination by the
employer of the service of a workman for any reason
whatsoever, otherwise than as a punishment inflicted
by way of disciplinary action, but does not include--
(a) voluntary retirement of the workman; or
(b) retirement of the workman on reaching the age of
superannuation if the contract of employment
between the employer and the workman concerned
contains a stipulation in that behalf; or
50[(bb) termination of the service of the workman as a
result of the non-renewal of the contract of
employment between the employer and the workman
concerned on its expiry or of such contract being
terminated under a stipulation in that behalf
contained therein; or]
(c) termination of the service of a workman on the
ground of continued ill-health."
11. Coming to the facts of the present case, in terms of the
order dated 29.08.2017 which was assailed by the workmen before
the learned Labour Court under Section 33A of the 1947 Act, copy
whereof is appended as Annexure P-9, the services of the workmen
were retrenched w.e.f. 29.08.2017 by mentioning in the
retrenchment notice that the provisions of Section 25F of the
Industrial Disputes Act were being complied with.
12. In this backdrop, when, in terms of the notice of
retrenchment, the services of the workmen were retrenched and they
were neither discharged nor dismissed, application under Section
33A of the 1947 Act against the notice of retrenchment was not
maintainable. In terms of Sub-section(2) of Section 33 of the Act, the
procedure prescribed in the proviso thereof has to be followed only
when the workman is either being discharged or dismissed. There is
no mention therein that said procedure also has to be followed when
the workman is being retrenched. Section 2(A) of the 1947 Act deals
with dismissal etc. of an individual workman and it provides that the
dismissal etc. of an individual workman to be deemed to be an
industrial dispute. Sub-section (1) thereof demonstrates that the
words 'discharge', 'dismissal' and 'retrenchment' have been used
disjunctively from each other, meaning thereby that 'discharge' and
'dismissal' cannot be construed to be synonyms of 'retrenchment'.
This extremely important aspect of the matter was not appreciated
by the learned Labour Court while passing the impugned order. In
fact, a perusal of the impugned order demonstrates that the
adjudication of the application filed under Section 33A of the
Act was on the premise that the order dated 29.08.2017 was issued
during the pendency of the dispute between the parties without
appreciating that the services of the workmen were not dismissed or
discharged but they were rather retrenched. In fact, legality of
retrenchment is not being touched upon by this Court in these
proceedings and all that this Court has to decide in these
proceedings is whether in the facts of the present case an
application under Section 33A of the Industrial Disputes Act was
maintainable or not.
13. As has already been observed by this Court
hereinabove, because in terms of the notice of retrenchment, neither
the workmen were discharged nor they were dismissed, the order of
retrenchment per se could not have been assailed under Section 33A
of the Industrial Disputes Act. If the workmen were aggrieved by the
order of retrenchment, their remedy was not under Section 33A of
the Industrial Disputes Act, but under other provisions thereof.
Therefore, the application filed by the workmen under Section 33A of
the Act against the notice of retrenchment was bad and adjudication
thereof in terms of the impugned order by learned Labour Court is
also thus bad in law.
14. In the light of above discussions, this writ petition
succeeds. Impugned order dated 13.01.2022, passed by the learned
Labour Court in application No.40 of 2018, titled as Arun Thakur
and others versus M/s Zen Technologies Ltd., is quashed and set
aside, but without any observations on the correctness of the notice
of retrenchment that was issued by the petitioner-Company.
15. In the light of the judgment passed by this Court in CWP
No.3633 of 2022 of even date, this petition is dismissed.
(Ajay Mohan Goel)
Judge
May 30, 2025
(Vinod)
