BATUK K VYAS Vs. SURAT BOROUGH MUNICIPALITY

JUDGEMENT

(1.) This is a petition by a dismissed employee of the Surat Municipal Borough complaining that the decision given by the Industrial Tribunal and the Labour Appellate Tribunal was without jurisdiction and asking us to set right that decision by a prerogative writ. The facts briefly are that the petitioner joined the Surat Municipal Borough on. November 4, 1949. There was a dispute between the Municipality and its workmen which was referred to the Industrial Tribunal on May 15, 1950. While that dispute was pending before the Tribunal, the Surat Municipal Borough dismissed the petitioner. An application was made by the petitioner under Section 33 A to the Tribunal complaining against his dismissal by the Surat Municipal Borough. The Tribunal' came to the conclusion that the Surat Municipal Borough was justified in terminating the services of the petitioner. There was an appeal to the Labour Appellate Tribunal and the Labour Appellate Tribunal upheld the decision of the Industrial Tribunal.

(2.) A very able argument has been advanced before us by Mr. Phadke as to the scope and extent of the inquiry contemplated by Section 33A before the Labour Appellate Tribunal. Section 33 of the Act prohibits an employer from altering to the prejudice of the workmen concerned in any pending dispute the conditions of service applicable to them immediately before the commencement of such proceeding, and also prohibits him from discharging or punishing, whether by dismissal or otherwise any workman concerned in such dispute; and it is common ground that the petitioner was concerned in the pending dispute before the Tribunal. Now, this prohibition is not absolute. It would be open to the employer to alter the conditions of the workmen to their prejudice or even discharge or punish them if he obtained the express permission in writing of the conciliation officer, Board or Tribunal. If he did not obtain such a sanction and he acted to the prejudice of the workmen, a penalty is provided under Section 31 and the penalty is that any employer who contravenes the provisions of Section 33 shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Therefore, reading Ss. 33 and 31, no difficulty presents itself. The Legislature has chosen to protect the rights of workmen pending industrial disputes by prohibiting the employer from doing anything to their prejudice without the express sanction of the conciliation officer. Board or Tribunal before whom there is a pending reference. In this particular case it is again common ground that the petitioner was discharged by the Surat Municipal Borough without the permission of that Tribunal and in having done so the Municipal Borough undoubtedly contravened the provisions of Section 33. It would also appear that by doing so it render-ed itself liable to be prosecuted and punished under Section 31. Then we come to Section 33A, the interpretation of which may suggest certain difficulties. The headnote of that section is, "Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceedings", and the section provides that

(3.) Now, it is necessary to consider what the law was before Section 33A was incorporated into the Industrial Disputes Act. That section was incorporated by Act 48 of 1950 and before that incorporation Section 33 was the only section dealing with a change made by the employer pending a reference, tinder the old ]aw, if an employer changed the conditions of service of a workman to his prejudice or discharged him, the workman had no remedy available to him. A reference undoubtedly could bo made to the Tribunal, but that reference could only be made by Government. The workman might move the Government to make the reference, but it was left to the discretion of the Government whether to make the reference or not. Therefore, under the old law, although the employer was liable to be punished for a contravention of Section 33 the workman had no remedy in himself to move the Tribunal to adjudicate upon what the employer had done to his prejudice. Therefore, Section 33A confers an important right upon the workman. He has a right to make a complaint to the Tribunal and the Tribunal has been given the right to adjudicate upon the complaint as if it were a dispute referred to or pending before it and the Tribunal has been also conferred the jurisdiction to submit an award in respect o this dispute to the appropriate Government. Therefore, prima facie, it seems clear that the object of Section 33A was to avoid a multiplicity of proceedings. Instead of Government making an independent reference and calling upon the Tribunal to adjudicate upon that reference, a more summary procedure was provided by which the workman himself, if he objected to the change or objected to his discharge, could go to the Tribunal and ask the Tribunal to adjudicate upon the dispute between himself and his employer. It seems to us difficult, on the language used by Section 33A, to hold that the ambit and scope of the inquiry to be held by the Tribunal is as limited as Mr. Phadke would suggest. If the intention of the Legislature was that all that the Tribunal could do under Section 33A was merely to determine the simple question as to whether a change to the prejudice of the workman had been brought about by the employer without the express permission in writing o the Tribunal, and if that decision was against the employer, the only power that the Tribunal had was to restore the status quo, it seems to us that the language used by the Legislature in Section 33A would have been very different from the language it has actually used. The very fact that the Legislature treats the complaint as if it were a dispute referred to or pending before it, goes to show that the jurisdiction of the Tribunal was not limited merely to consider the question of the contravention of Section 33, but to decide on the substantive dispute between the employer and the workman with regard to the change in the conditions of service or the discharge of the employee by the employer.