Bhavnagar Municipality v. Alibhai Karlmbhai & Others

Go;;wAMI, J. This appeal by special leave at the instance of the Bhavnagar Municipality is directed against the order of the Gujarat High Court dismissing in limine its writ application challenging the award of the Industrial Tribunal, Gujarat, made under section 33A of the Industrial Disputes Act (briefly the Act).

There was an industrial dispute pending between the Bhavnagar Municipality (briefly the appellant) and its workmen before the Indus-trial Tribunal ·in Reference No. 37 of 1974 referred to it under section 10(1) (d) of the Act on March 5, 1974. The said industrial dispute related to several demands including the demand for permanent status of the daily rated workers of the Water Works Section of the Munici-pality who had completed 90 days' service. While the aforesaid indus-trial dispute was pending before the Tribunal, ·the appellant, on September 30, 1974, passed orders retrenching 22 daily rated work-men (briefly the respondents) attached to the Water Works Section of the Municipality. It is not disputed that the appellant had complied with section 25F of the Act and due retrenchment compensation had been paid to those workers. On June 20, 1975, the respondents filed a complaint to the Tribunal under section 33A of the Act for contra-I> vention of secfam 3 3 of the Act by the appellant.

Neither party adduced any oral evidence before the Tribunal but relied only upon documents produced before it. On October 30, 1975, the Tdbunal made its award holding that the appellant contravened section 33(1) (a) of the Act and, therefore, directed reinstatement of the respondents. The appellant preferred a writ application before the High Court which was dismissed in limine, as stated abovle. Hence this appeal by special leave.

Two questions arise for decision .in this appeal. First, whether the appellent contravened section 33 (I) ( e) of the Act by ordering retren-chment of the respondents who, along with other workers, were directly involved ·in the industrial dispute pending before the Tribunal. Second, whether contravention of section 33 will automatically lead to an order of reinstatement of the respondents, as has been held by the Tribunal.

It is common ground that the appellant did not obtain prior per-mission of the Tribunal before retrenching the respondents.

It is vrnll settled that a complaint under section 33A is maintain-able only if the employer contravenes section 33 of the Act. It is submitted by Mr. Agarwal, on behalf of the respondents, that the object of section 33 should be borne in mind in considering the ques-tion about alteration of conditions of service under secton 33(1) (a) of the Act. He submits that since the respondents were directly involved in the dispute and the question of their permanent status from a casual or temporary status formed the subject matter of the dispute. the reference has been made nugatory by the action of the appellant in retrenching them. Mr. Parekh, on the other hand, sub-mits that retrenchment of the respondents does not involve alteration of conditions of service and hence there is no contravention of section 33 of the Act.

There is no complaint by Mr. Agarwal that there is any non-compliance by the appellant with section 28F of the Act. Mr. Agarwal further rightly concedes that he cannot bring his case under section 33(1) (b) or under section 33(2) (b) since it is not a case of discharge or dismissal for misconduct. His entire submission is based on section 33(1) (a) of the Act.

'B

Section 33 of the Act so far as material for us may be set out : "33 ( 1) During the pendency of any .... proceeding before

a . . . . . . Tribunal . . . . in respect of an industrial dispute, no employer shall- ( a) in regard to ·any matter connected with the dispute, ·C alter, to the prejudice of the workm.:n concerned in

such dispute, the conditions of service applicable to them immediatelv before the commencement of such proceeding; , x x x x J) save with the express permission 111 writing of the

authority before which the proceeding is pending".

There is a clear prohibition in section 33(1) (a) against altering conditions of service by the employer under the circumstances ~pecified except with the written permission of the Tribunal or other authority therein described. ·--,

In order to attract section 33 ( l) (a), the following features must be present :

(l) There is a proceeding in ·respect of an fodustrial dispute

pending before the Tribunal.

'F (2) Conditions of service of the workmen applicable immedi-

ately 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. ·G (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 pre-

judice of the workmen.

The first feature is admittedly present in this case since action has .H been taken by the appellant in retrenching the respondents during the

pendency of the proceeding before the Tribunal. The point that re-quires consideration is whether the other features are also present in the instant case.

Before we proceed further we should direct our attention to the subject matter of the industrial dispute pending before the Tribunal. It is sufficient to take note of the principal item of the dispute, namely, the demand of the respondents for conversion of the temporary status of their employment into perma!lent. To recapitulate briefly the appellant employed daily rated workers to do the work of boring a~d hand pumps in its Water Works Section. These workers have been m employment for over a year. They claimed permanency in their em-ployment on their putting in more than 90 days' service. They also demanded two pairs of uniform every year, cycle allowance at the rate of Rs. 10/- per month, Provident Fund benefit and National Holidays and other holidays allowed to the other workers. While this particular dispute was pending before the Tribunal, the appellant decided to en-trust the work, which had till then been performed by these workers in the Water Works Section, to a contractor. On the employment of the contractor by the Municipality for the self-same work, the services of the respondents became unnecessary and the appellant passed the orders of retrenchment. It is, therefore, olear that by retrenchment of the respondents even the temporary employment of the workers ceased while their dispute before the Tribunal was pending in order to improve that temporary and insecure status.

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 dis-pensation in the pending adjudication. And if the appellant wanted to effect a change of their system in getting the work done through a con~ tractor 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 ser- - vices. The alteration of the method of work culminating in termination

of the ~ervices by way of retrenchment in this case has a direct impact on the adjudication proceeding. The alteration effected in the tem-porary employment of the respondents which was their condition of service immediately before the commencement of tl1e proceeding before the Tribunal, is in regard to a matter connected with the pending indus-trial dispute.

The character of the temporary employment of the respondents be-ing a direct issue before the Tribunal, that condition of employment, however insecure, must subsist during the pendency of the dispute be-fore the Tribunal and cannot be 3'ltered to their prejudice by putting an end to that temporary condition. This could have been done only with the express permission. of the Tribunal. It goes without saying that the

respondents were directly concerned in the pending industrial dispute. No one also deny that snapping of the temporary employment of the respondents is not to their prejudice. All the five features adverted to above are present in the instant case. To permit rupture in employ-ment, in this case, without the prior sanction of the Tribunal will be to set at naught the avowed object of section 33 which is principally direct-ed to preserve the status quo under specified circumstances in the inter-est of industrial peace during the adjudication. We are, therefore, clearly of opinion that the appellant has contravened the provisions of section 33(1) (a) of the Act and the complaint under se<'tion 33A, at the instance of the respondents, is maintainable. The submission of Mr. l'arekh to the contrary cannot be accepted.

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 32A, event 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 b~ 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 com-mitted an error of jurisdiction in declining to adjudicate the matter and to make its award on the merits as required under the Jaw. The High Court was, therefore, not right in dismissing the writ application of the appellant in limine. 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 g!·oss act of victimisation". ·

In the result the order of the High Court is set aside. It follows that the award of the Tribunal ordering reinstatement of the respon-dents falls and is set aside.. We should also add that the, observations of the Tribunal wit11 regard to the question of prosecution of the appellant under sections 31 and 32 of the Act were not at all pertinent in an enquiry under section 33A and ought not to have been made. The writ application in the High Court stands allowed to the extent indicated. The appeal is allowed as diretted in this order. The com-plaint under section 33A stands restored to the file of the Tribunal for disposal on the merits in accordance with law and in the light of this J judgment. The appellant, however, shall pay the costs of the respon-dents as ordered at the time of granting of the Special Leave.

M. ':rt. Appeal allowed.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 900 of 1976. Appeal by Special Leave from th~ Judgme~t. and Order dated 8-3-1976 of the Gujarat High Court m Spl. Civil Appln. No. 263 of 1976.

P. H. Parekh and (Miss) Manju !etley for the Appellant. s. c. Agarwal, V. J. Francis and A. P. Gupta for the Respond.ents.