W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 1 of 26 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 12.09.2008 + W.P.(C) No.10744/2006 (Against the Award dated 22.12.2005 passed in Complaint No.15/2004 titled Shri Suresh Chand v. M/s.Richa & Company) M/s.Richa & Company ….… Petitioner Through: Ms.Raavi Birbal, Advocate. Versus Shri Suresh Chand …..... Respondent Through: Mr.M.Z.Chaudhary, Advocate. + W.P.(C) No.10765/2006 (Against the Award dated 22.12.2005 passed in Complaint No.16/2004 titled Shri Upender Prasad v. M/s.Richa & Company) M/s.Richa & Company ….… Petitioner Through: Ms.Raavi Birbal, Advocate. Versus Shri Upendar Prasad …..... Respondent Through: Mr.M.Z.Chaudhary, Advocate. W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 2 of 26 + W.P.(C) No.10740/2006 (Against the Award dated 22.12.2005 passed in Complaint No.17/2004 titled Shri Bhagwan Singh v. M/s.Richa & Company) M/s.Richa & Company ….… Petitioner Through: Ms.Raavi Birbal, Advocate. Versus Shri Bhagwan Singh …..... Respondent Through: Mr.M.Z.Chaudhary, Advocate. + W.P.(C) No.10760/2006 (Against the Award dated 22.12.2005 passed in Complaint No.18/2004 titled Shri Mohar Singh v. M/s.Richa & Company) M/s.Richa & Company ….… Petitioner Through: Ms.Raavi Birbal, Advocate. Versus Shri Mohar Singh …..... Respondent Through: Mr.M.Z.Chaudhary, Advocate. + W.P.(C) Nos.11684-85/2006 (Against the Award dated 22.12.2005 passed in Complaint No.19/2004 titled Shri Sunil Kumar v. M/s.Richa & Company) M/s.Richa & Company & Anr. ….… Petitioners Through: Ms.Raavi Birbal, Advocate. Versus Shri Sunil Kumar …..... Respondent Through: Mr.M.Z.Chaudhary, Advocate. W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 3 of 26 + W.P.(C) No.10759/2006 (Against the Award dated 22.12.2005 passed in Complaint No.20/2004 titled Shri Mohammad Nasir v. M/s.Richa & Company) M/s.Richa & Company ….… Petitioner Through: Ms.Raavi Birbal, Advocate. Versus Shri Mohammad Nasir …..... Respondent Through: Mr.M.Z.Chaudhary, Advocate. + W.P.(C) No.11272/2006 (Against the Award dated 22.12.2005 passed in Complaint No.21/2004 titled Shri Prabhu Nath Rajak v. M/s.Richa & Company) M/s.Richa & Company & Anr. ….… Petitioners Through: Ms.Raavi Birbal, Advocate. Versus Shri Prabhu Nath Rajak …..... Respondent Through: Mr.M.Z.Chaudhary, Advocate. + W.P.(C) No.10743/2006 (Against the Award dated 22.12.2005 passed in Complaint No.22/2004 titled Shri Parmatma Tiwari v. M/s.Richa & Company) M/s.Richa & Company ….… Petitioner Through: Ms.Raavi Birbal, Advocate. Versus Shri Parmatma Tiwari …..... Respondent Through: Mr.M.Z.Chaudhary, Advocate. W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 4 of 26 + W.P.(C) No.9832/2006 (Against the Award dated 22.12.2005 passed in Complaint No.23/2004 titled Shri Vishwanath Jha v. M/s.Richa & Company) M/s.Richa & Company ….… Petitioner Through: Ms.Raavi Birbal, Advocate. Versus Shri Vishwanath Jha …..... Respondent Through: Mr.M.Z.Chaudhary, Advocate. + W.P.(C) No.10758/2006 (Against the Award dated 22.12.2005 passed in Complaint No.24/2004 titled Shri Raman Jee Jha v. M/s.Richa & Company) M/s.Richa & Company ….… Petitioner Through: Ms.Raavi Birbal, Advocate. Versus Shri Raman Jee Jha …..... Respondent Through: Mr.M.Z.Chaudhary, Advocate. CORAM :- HON’BLE MR. JUSTICE ANIL KUMAR 1. Whether reporters of Local papers may YES be allowed to see the judgment? 2. To be referred to the reporter or not? NO 3. Whether the judgment should be reported NO in the Digest? W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 5 of 26 ANIL KUMAR, J. 1. The petitioner has impugned the awards dated 22nd December, 2005 passed by Industrial Tribunal-II, Delhi in these petitions directing the petitioner/management to fix the duty hours of the workmen/respondent in different petitions, from 9.30 AM to 6.00 PM as was done by the management prior to 1st July, 2002 and not to fix the working hours from 9.30 AM to 6.15 PM as has been done by the petitioner/management. 2. The awards dated 22nd December, 2005 were given in the applications filed by different workers/respondents under section 33 A of the ID Act, 1947. The different awards were during the pendency of complaint no. 22 of 1998 filed by Richa & Co. Karamchari Union Regd. The awards were given in complaint no.17/2004, Sh. Bhagwan Singh v. M/s Richa & Company; in complaint No.16/2004, Sh.Upender Singh v. M/s.Richa & Company; in complaint No.19/2004, Sh.Sunil Kumar v. M/s.Richa & Company; in complaint No.23/2004, Sh.Vishwanath Jha v. M/s.Richa & Company; in complaint No.21/2004, Sh.Prabhu Nath Rajak v. M/s.Richa & Company; in complaint No.18/2004, Sh.Mohar Singh v. M/s.Richa & Company; in complaint No.20/2004, Sh.Mohammad Nasir v. M/s.Richa & Company; in complaint No.24/2004, Sh.Raman Jee Jha v. M/s.Richa & Company; in complaint W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 6 of 26 No.15/2004, Sh.Suresh Chand v. M/s.Richa & Company; and in complaint No.22/2004, Sh.Parmatma Tiwari v. M/s.Richa & Company. 3. Brief relevant facts for comprehension of the disputes between the parties in these petitions are as given hereinafter. The petitioner is a partnership firm carrying on manufacture of readymade garments. The working hours of the petitioner‟s firm were 9.30 AM to 6 PM which included a tea break from 4 to 4.15 PM. From 1st July, 2002 the management changed the working hours from 9.30 AM to 6.15 PM, an addition of 15 minutes in the working hours. 4. The increase of working hours was in consonance with Section 51 of the Factories Act, 1948 which contemplates that working hours in a factory shall not be more than 48 hours in a week. Section 51 of the Factories Act, 1948 is as under:- “Section 51. Weekly Hours- No adult worker shall be required to allowed to work in a factory for more than forty eight hours in a week.” 5. The change in working hours of the workmen were made by the petitioner/management during the pendency of a reference of disputes raised by the workers union regarding annual increment, transport allowance, summer and winter uniforms and enhancement in tea W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 7 of 26 allowance. The reference which was pending on behalf of workers union when the increase in working hours in accordance with Section 51 of the Factories Act, 1948 was made was as under:- “Whether the workmen are entitled to annual increment, and if so at what rate and what directions are necessary in this respect? Whether the workmen are entitled to Transport allowance and if so at what rate and what directions are necessary in this respect? Whether the workmen are entitled to Summer and Winter Uniform and if so, and what directions are necessary in this respect? Whether the workmen are entitled to enhancement in tea allowance for Rs.1/- to Rs.3/- per tea or canteen facility in lieu thereof and if so, what directions are necessary in this respect?” 6. As the working hours were changed by the petitioner, first a complaint was filed by the union of the workers/respondents contending that the petitioner/management had increased the working hours by 15 minutes per day without obtaining the approval or permission of the Tribunal, as another reference of disputes was pending and, therefore, the act of the petitioner/management is illegal and unjust and bad in law. The union of the workmen, therefore, sought initiation of action against the petitioner management for violation of Section 33 (1)(a) of the I.D Act, 1947 under Section 33 A (b) of the Industrial Disputes Act, 1947. W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 8 of 26 7. The complaint was contested by the petitioner contending inter- alia about its maintainability as according to petitioner the union of workers failed to show that Section 33 of I.D Act, 1947 had been violated in any manner. The application under Section 33A being Complaint no. 12 of 2002 filed by the Union in I.D No.22/1998 was, however, dismissed by an award dated 7th February, 2004 holding that application of the union under section 33 A of the ID Act, 1947 was not maintainable. 8. After dismissal of the application/complaint filed by the union of workers/respondents against increase of working hours to 9.30 AM to 6.15 PM, different respondents/workmen filed different applications under section 33 A of the ID Act, 1947 seeking same relief. The applications were filed by the workers/respondents under Section 33 A in the same pending I.D No.22/1998 about the change of duty hours and they again alleged violation of Section 33 of the I.D Act, 1947. The petitioner opposed the applications/complaints and contended that the subject matter of the complaints filed by the workmen and the pending reference are not connected and are all together different and independent of each other and, therefore, the provisions of Section 33 of the I.D Act was not attracted. The petitioner also contended that there is no change in the service condition of the employees of the factory and W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 9 of 26 they have been asked to do normal work in accordance with law and as per provisions of Factories Act, 1948 and, therefore, there is no violation of any provision of law. 9. After considering the pleas and contentions and evidence recorded on behalf of the parties, the awards dated 22nd December, 2005 were passed by the Industrial Tribunal-II holding that the change of timings from 9.30 AM to 6 PM to 9.30 AM to 6.15 PM is a material change in the condition of service of the employees and consequently the management could alter the condition of service in compliance with Section 33 sub Section (1) Clause (a) only with prior approval. Since the management/petitioner has altered the condition of service applicable to the workers during the pendency of I.D No.22/1998 without compliance of standing orders or prior approval, there is violation of Section 33 (1) (a) of the I.D Act and, therefore, directed the petitioner/management to re-fix the duty hours from 9.30 AM to 6.00 PM. The petitioner has challenged the awards passed on different applications/complaints of different workers in these writ petitions. 10. The writ petitions are contested by different respondents in these petitions on the same grounds alleging that though the workers are bound to work minimum eight hours a day and forty eight hours a week, however, the change in timings could not be done by the W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 10 of 26 petitioner without the prior permission of the Authority/Tribunal as the reference of disputes raised by their union about other condition of service was pending. It was alleged that present writ petitions have been filed to pressurize and harass the workers as they are not in a position to continue the litigation financially and are unable to bear the expenses. It was also contended that the petitioner has not come to the Court with clean hands. It has, however, been admitted that a similar application/complaint was also filed by their union which was dismissed. It was denied by the different workers that they have been misguided. 11. I have heard the learned counsel for the parties in detail and have perused the impugned awards, pleadings and the evidence. The learned counsel for the petitioner has relied on May & Baker (India) Ltd v. Their Workmen, AIR 1967 SC 678; Orissa Oil India Mazdoor Union & Ors v. UOI & Ors, 1990 Labour Industrial Cases 1146; L.K.Textile Mills v. Its Workmen, AIR 1961 SC 860 and Strawboard Manufacturing Co. v. Gobind, LLJ Vol.II 1962 in support of his pleas and contentions that the complaints by the workers under Section 33A of the Industrial Disputes Act, 1947 were not maintainable as there was no violation of either Section 33(1) or 33(2) of the Industrial Disputes Act, 1947. The plea of the respondent is that a general demand of entire members was pending as I.D No.22/1998 before the Tribunal and, therefore, the W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 11 of 26 workmen/respondents' service conditions could not be changed by changing the working hours without obtaining the permission from the concerned authority/Tribunal. 12. This is not disputed that the term of reference in I.D No.22/1998 is in respect of annual increment; transport allowance; entitlement of the workmen for summer and winter uniform and entitlement to enhancement in tea allowance. Section 33 A of the Industrial Disputes Act, 1947 is attracted where the employer has contravened section 33 of the said act which is as under: 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, 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 W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 12 of 26 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],- (a) alter, in regard to any matter not connected with the dispute, the conditions or 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 him immediately before the 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 office bearer] of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf. W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 13 of 26 (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 minimum number of five protected workmen 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, 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 further period as it may thinks 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 such proceedings being completed.] 13. Where section 33 is contravened by the management during the pendency of proceedings, any employee aggrieved by such contravention has a right to file a complaint against such contravention which is to be adjudicated as a dispute in accordance with the provisions of the Act. Section 33 A of the Industrial Disputes Act, 1947 is as under:- W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 14 of 26 33-A. 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, a Labour Court, Tribunal or National Tribunal], any employee aggrieved by such contravention, may 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.] 14. Under section 33(1)(a) of the Act, an employer is not entitled to alter the conditions of service which are subject matter of the pending disputes. This section provides protection to a workman, provided an industrial dispute is pending and alteration in the service condition is with regard to any matter connected with the dispute and such alteration is prejudicial to his interest. For invoking violation of section 33 (1) (a) of the Act what is to be considered is whether the particular matter in regard to which the complaint of alteration of service is made is one which can be said to be connected with an industrial dispute which is already pending. It is only where the alteration effected by the W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 15 of 26 employer and the dispute pending before the tribunal is connected that the said section comes into play. If the alteration of conditions of service is not connected with the subject matter of the pending dispute the workman would not be entitled to the protection of section 33(1) (a). 15. A division Bench of Orissa High Court in 1990 Lab. I.C 1146 relying on Air India Corporation, Bombay v. V.A.Rebellow, 1972 Lab.I.C 668 and Bhavnagar Municipality v. Alibhai Karmbhai, (1977) I Lab.I.C 834 had held that in order to entitle a workman to the provision of clause (a) of the sub section (1) of section 33, the following conditions must cumulatively exist: i. There should be a pendency of any proceeding in respect of industrial dispute. ii. The workman claiming protection should not only be a workman within the meaning of section 2(s) of the Act, but also be a workman concerned in the pending dispute. iii. Alteration in question should have the effect of making a change in the conditions of service applicable to such workman which were applicable to him before the commencement of such proceedings and such alterations should be prejudicial to his interest; and iv. Such alteration should be in regard to any matter connected with the pending dispute. 16. On violation of section 33 of the ID Act, 1947, section 33A is attracted. In Md Akhtar Hussain v. State of Bihar, (1988) 1 LLJ 325(SC) the Apex Court has observed that “ in a complaint to the W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 16 of 26 tribunal under section 33A, the basic question that is to be considered by the concerned authority is, whether there has been a contravention by the employer of the provisions of section 33, and it is only in case it is found that there has, in fact, been such contravention, that the occasion arises for the authority to embark upon an adjudication to the dispute contained in the complaint, on its merits.” Section 33 has been enacted for the protection of the workman concerned in the dispute against victimization by an employer on account of his having raised an industrial dispute or his being a party to a pending industrial proceeding and to ensure that pending industrial disputes are brought to an expeditious determination in a peaceful atmosphere. In Punjab Beverages Pvt. Ltd v. Suresh Chand (1978) 2 LLJ 1,5 (SC) it was observed that “the purpose of the prohibitions contained in section 33 is twofold. On the one hand, they are designed to protect the workmen concerned during the course of industrial conciliation, arbitration and adjudication, against employer‟s harassment and victimization, on account of their having raised the industrial dispute or their continuing the „pending proceedings‟, on the other, they seek to maintain status quo by prescribing management conduct which may give rise to fresh disputes which further exacerbate the already strained relations between the employer and the workmen.” W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 17 of 26 17. It is also pertinent to note that section 33 in its current form was inserted into the Act by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956. Prior to the amendment, the employers were prevented from altering the service conditions of their workmen even in respect of matters not connected with the dispute. The employer could make no alteration in conditions of service to the prejudice of workmen even though the proposed alteration had no connection whatever with the dispute pending between him and his employees. The section had imposed a total ban on the employer exercising his common law or contractual right to alter the conditions of service of a workman. That is why by amending this section in 1956, the legislature had made a broad division between action proposed to be taken by the employer in regard to any matter connected with the dispute on the one hand, and action taken in regard to matter not connected with the dispute pending before the authority on the other. In Lord Krishna Textile Mills v. Its Workmen (1961) 1 LLJ 211, 214 (SC), the Apex Court had considered section 33 prior to its amendment in 1956 and ramification of amendment in the said section. The Supreme Court had held as under: “Before, however, we turn to the interpretation of the proviso we may refer to the circumstances in which S.33(2) came to be enacted. Originally there was no such provision like S.33(2) in the Act and the only provision to be found therein corresponded to the present S.33(1). The object behind enacting S.33 as it was before the amendment of W.P.(C.) Nos. 10744/06, 10765/06, 10740/06, 10760/06, 11684-85/06, 10759/06, 11272/06, 10743/06, 9832/06, 10758/06 Page 18 of 26 1956 was to allow continuance of industrial proceedings pending before any authority prescribed by the Act in a calm and peaceful atmosphere undisturbed by any other industrial dispute. The plain object of the section was to maintain the status quo as far as possible during the pendency of any industrial dispute before a tribunal. But it seems to have been felt that S.33, as it stood before the amendment of 1956, was too stringent for it completely took away the right of the employer to make any alteration in the conditions of service or to make any order of discharge or dismissal without making any distinction as