[Industrial Disputes Act] Enquiry Under Section 33(2)(b) Meant To Lift The Veil On Any Hidden Motive To Punish The Workman: Kerala High Court

The Kerala High Court on Friday observed that the limited enquiry contemplated under Section 33 (2) (b) of the Industrial Disputes Act is only to find out whether a proper domestic enquiry has been held to prove the misconduct attributed to the workman and whether he has been afforded reasonable opportunity to defend himself in consonance with the principles of natural justice.

Justice Mohammed Nias C P observed that proviso to Section 33 (2)(b) is for the protection of the workman and to shield the workman against victimization or unfair practice by the employer during the pendency of an industrial dispute when the relationship between them is strained.

Referring to Supreme Court's decision in John D'Souza v. Karnataka State Road Transport Corporation and on reading the provisions, the court said:

"It is clear that the limited enquriy contemplated under Section 33 (2) (b) of the Act is only to find whether a proper domestic enquiry has been held to prove the misconduct attributed to the workman and whether he has been afforded reasonable opportunity to defend himself in consonance with the principles of natural justice. The object, therefore, of such an enquiry is to lift the veil to find out that there is no hidden motive to punish the workman or the act is an abortive attempt to punish him for a non-existing misconduct"

The observations were made by the court in its decision on a Writ Petition moved by a company challenging the order dismissing the application filed by it under Section 33(2)(b) of the Industrial Disputes Act for approval of the dismissal order passed against a workman.

The petitioner-company had initiated disciplinary proceedings against a workman (1st respondent). Pursuant an enquiry was conducted, and the workman was found guilty, and punishment of dismissal was imposed.

Thereby, the petitioner moved an application under Section 33(2)(b) of the Act; however, the application was rejected, citing the pendency of the dispute raised at the instance of the worker's union regarding the charter of demands.

Senior Advocate E.K. Nandakumar, representing the petitioner, contended that the Deputy Labour Officer has not exercised the jurisdiction vested in him under the Act legally.

It was further averred by the Counsel that even if the industrial dispute is pending, the approval ought to have been granted without prejudice to the right of the Union to proceed with the dispute.

Furthermore, the Counsel contended that the findings are ex-facie illegal as the duty of the Deputy Labour Officer was limited to verifying whether the enquiry stated to be conducted was fair and whether one month's wages as prescribed under the provision had been paid. As both these requirements were satisfied, he contended, the approval ought to have been granted.

Advocate Thomas Abraham, who represented the Union, questioned the disciplinary action initiated by the Manager and argued that the order rejecting the application moved under Section 33(2)(b) cannot be faulted. The Counsel also submitted that the management had come up with false allegations to wreak vengeance against the workman and previous litigation proves the same.

The Court, after considering the arguments put forth by the Counsels, held that the impugned order cannot be sustained as the consideration mandated under Section 33(2)(b) had not been done while rejecting the prayer of approval. It directed the Deputy Labour Officer to consider the application afresh after hearing both the workmen and the management.

The bench earlier noted that prior to the 1956 amendment, Section 33 of the ID Act virtually prohibited a change of service conditions to the prejudice of workman or discharge or dismissal of the workman during the pendency of any conciliation proceedings or any other proceedings before a Labour Court or tribunal in respect of an industrial dispute.

However, after the 1956 amendment, the court added, a clear distinction was drawn between the action proposed to be taken by the employer regarding any matter connected with the dispute on one hand and action proposed to be taken regarding a matter not connected with the dispute pending before the authority.

"While sub Section (1) of Section 33 deals with matters connected with the pending dispute and imposes a ban on change of service conditions or discharge or dismissal except with the express permission in writing of the authority before which the proceeding is pending, Sub-Section (2) of Section 33 deals with the alterations in the conditions of service as well as discharge or dismissal of workman concerned in any pending dispute where such alteration or such discharge or dismissal is in regard to a matter not connected to the pending dispute," said the court.

To put it differently, it is a permission seeking an approval of the action already taken, added the Court.

Case Title: Midland Rubber Produce Company ltd. V. Uthayasuriyan & Ors. 

Citation: 2022 LiveLaw (Ker) 508

Click Here To Read/Download The Order