Appeal No 900 of 1976
Appeal by Special Leave from the Judgment and Order dated 8 3 1976 of the Gujarat High Court in Spl
Civil Appln
No 263 of 1976
PH Parekh and Miss Manju jetley for the Appellant
SC Agarwal VJ Francis and AP Gupta for the Respond ents
933 The Judgment of the Court was delivered by GOSWAMI J
This appeal by special leave at the in stance 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 Industrial Tribunal in Reference No 37 of 1974 referred to it under section 101 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 Municipality who had completed 90 days  service
While the aforesaid industrial dispute was pending before the Tribu nal the appellant on September 30 1974 passed orders retrenching 22 daily rated workmen briefly the respondents attached to the Water Works Section of the Municipality
It is not disputed that the appellant had complied with sec tion 25F of the Act and due retrenchment compensation had been paid to those workers
On June 20 1975 the respond ents filed a complaint to the Tribunal under section 33A of the Act for contravention of section 33 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 Tribunal made its award holding that the appellant contravened section 331a 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 above
Hence this appeal by special leave
Two questions arise for decision in this appeal
First whether the appellant contravened section 33 1e of the Act by ordering retrenchment of the respondents who along with other workers were directly involved in the industrial dispute pending before the Tribunal
Second whether contra vention 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 permission of the Tribunal before retrenching the respondents
It is well settled that a complaint under section 33A is maintainable 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 question about alteration of conditions of service under section 331a of the Act
He submits that since the respondents were directly in volved 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 nuga tory by the action of the appellant in retrenching them Mr Parekh on the other hand submits 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
934 There is no complaint by Mr Agarwal that there is any noncompliance by the appellant with section 28F of the Act
Mr Agarwal further rightly concedes that he cannot bring his case under section 331 b or under section 332b since it is not a case of discharge or dismissal for miscon duct
His entire submission is based on section 331a of the Act
Section 33 of the Act so far as material for us may be set out 331 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 alter to the prejudice of the workmen concerned in such dispute the condi tions of service applicable to them immediate ly before the commencement of such proceeding X X X save with the express permission in writing of the authority before which the proceeding is pending
There is a clear prohibition in section 331a against altering conditions of service by the employer under the circumstances specified except with the written permission of the Tribunal or other authority therein de scribed
In order to attract section 331a 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 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
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
The first feature is admittedly present in this case since action has been taken by the appellant in retrenching the respondents during the pendency of the proceeding before the Tribunal
The point that requires 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 permanent
To recapitulate briefly the appellant employed daily rated workers to do the work of boring and hand pumps in its Water Works Section
These workers have been in employment for over a year
They claimed permanency in their employment 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 entrust 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 clear that by retrenchment of the respondents even the temporary employ ment 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 circum stances amount to alteration of the conditions of service
For instance when a wage dispute is pending before a Tribu nal and on account of the abolition of a particular depart ment the workers therein have to be retrenched by the em ployer such a retrenchment cannot amount to alteration of the conditions of service
In this particular case howev er 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 method of work culmi nating in termination of the services by way of retrenchment in this ease has a direct impact on the adjudication pro ceeding
The alteration effected in the temporary employ ment 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
The character of the temporary employment of the re spondents being a direct issue before the Tribunal that condition of employment however insecure must subsist during the pendency of the dispute before the Tribunal and cannot be altered 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 with out saying that the 936 respondents were directly concerned in the pending industri al 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 employment 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 directed to preserve the status quo under speci fied circumstances in the interest of industrial peace during the adjudication
We are therefore clearly of opinion that the appellant has contravened the provisions of section 331a of the Act and the complaint under section 33A at the instance of the respondents is maintainable
The submission of Mr Parekh to the contrary cannot be accepted
That however does not conclude the matter
The Tribu nal 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 contra vened the provisions of section 33 the Tribunal has to pronounce upon the merits of the dispute between the par ties  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 au thority 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 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 retrench ment by the appellant was a gross act of victimisation
In the result the order of the High Court is set aside
It follows that the award of the Tribunal ordering rein statement of the respondents fails and is set aside
We should also add that the
observations of the Tribunal with regard to the question of prosecution of the appellant under sections 31 and 32 of the Act were not at all perti nent 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 directed in this order
The complaint 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 judgment
The appellant however shall pay the costs of the respondents as ordered at the time of granting of the Special Leave
MR Appeal allowed


Summary:
An industrial dispute between the appellant and its workmen including the respondents was pending before the Industrial Tribunal
The dispute inter alia related to the demand for permanent status of the respondents who were rated workers of the water works section of the Munici pality
Meanwhile without obtaining the Tribunal s prior permission the appellant retrenched the respondents
On a complaint by the respondents section 33 A of the Industrial Disputes Act the Tribunal made an award holding that the appellant had contravened section 331a of the Act and di rected reinstatement of the respondents
The complaint was not adjudicated on merits
The appellant filed a writ petition which was dismissed in limine by the High Court
Allowing the appeal but agreeing that the appellant had contravened section 33  I  a and that the respondents  com plaint section 3 3  1  a was maintainable the Court re stored the respondents  complaint for disposal on merits by the Tribunal
HELD 1 The character of the temporary employment of the respondents being a direct issue before the Tribunal that condition must subsist and cannot be altered to their prejudice by putting an end to that temporary condition
This could be done only with the express permission of the Tribunal
933 G H The Court further observed To permit rupture in employment 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 interest of industrial peace during the adjudication
936 A B 2 In a complaint under section 33 A 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
For the purposes of the Act the complaint under section 33A takes 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
936 C D 3 The Tribunal has committed an error of jurisdiction in ordering reinstatement of the respondents and declining to adjudicate the matter and to make its award on the merits as required under the law
936 D