JUDGMENT
Amitava Lala, J.
1. The learned Judge of the 8th Industrial Tribunal, West Bengal was in the seisen of an industrial dispute referred by the appropriate authority of the Labour Department, Government of West Bengal vide letter dated 19th April, 1999. The issues under such order of reference are as follows:
“(1) Whether denial of permanency to Shri Ashok Kumar Prosad by the Management is justified?
(2) To what relief, if any, is he entitled?”
2. The Tribunal ultimately held by its award dated 22nd March, 2001 on the basis of the Division Bench judgment of the Calcutta High Court reported in 2001(1) LLJ 280 (Management of Panchamalai Estate v. D. Gnanasekharan) that law nowhere states that if the person has worked for more than 240 days in a year he is entitled to be regularised in service. Provision contained in Chapter V of the Industrial Disputes Act had been enacted merely to protect the right of the workmen from being illegally dismissed from the service. Section 25 of the said Act does not contemplate creation of any right of absorption in favour of any person. Considering the legal aspect the Tribunal held that it has no authority to direct the company for making the concerned staff to be permanent. Therefore, denial of permanency to the incumbent by the management is justified and accordingly he is not entitled to any relief whatsoever from the management.
3. Before hearing was concluded a workman/respondent herein made an application before the Tribunal under Section 33A of the Act taking the plea that such workman was dismissed by the management when the industrial dispute in which the aforesaid award was passed in respect of the some other workmen was pending. The management did not take any permission of the Tribunal under Section 33(2)(b) of the Industrial Disputes Act, 1947.
4. The Tribunal held that as because the present workman is attached to the Union which has referred the matter of dispute with regard to the workman in which the Tribunal held against him, this workman has nexus and connection with the disputes raised by the Union on behalf of that workman. Therefore, the company contravenes the provision of Section 33 of the Act and the workman has right to file the application under the Act. The workman has been able to prove that he has prima facie case to go for trial.
5. According to me, the subject matter of the dispute has a great importance for consideration. Social piece of legislation cannot be construed outside the scope and ambit of the Constitutional right. Concept of social justice is deriving from the Constitution of India itself, specially towards equal right and equal protection of each and every citizen. Nowadays I come across submissions on numerous occasions that the employees are beneficiaries of social piece of legislation because they are in unequal bargaining position. But understanding of unequal bargaining position is not yet clear benefit will be given as and when one is entitled to get relief in accordance with law. When one is unable to get relief in accordance with law yet relief is to be granted as they are in unequal bargaining position, is not the law. Submission to, get the benefit of the social piece of legislation to the workmen at large cannot give any room to the judiciary to ignore the law. Therefore, whether the respondent/ workman has any right to make an application under Section 33A of the Act to the Tribunal or there is any failure on the part of the management to obtain a permission under Section 33(2)(b) of the Act that can be ascertained by the writ Court at any stage as and when one of the parties felt that he suffered prejudice by prima facie view or/final view. It is to be remembered that the justiciability is outcome of prima facie view. Whenever a Tribunal considered the justiciability even on the basis of the evidence adduced by the parties and held that the workman was able to prove that he has prima facie case to go for trial, then the writ Court obviously give thought on that score. In such case it would not be limited to justiciability alone. Leaving aside the final order the entirety has been considered in the form of prima facie view. Therefore, the Court will visualise carefully whether the Tribunal has taken all aspects of the matter to come to an appropriate conclusion or passed order with hasty mind. Section 33 of the Industrial Disputes Act, 1947 prescribes that the conditions of service etc. will remain unchanged during the pendency of the proceeding. The true import of the section is to maintain status quo during the pendency of the proceeding either before the authority or before the Court or Tribunal. Under normal circumstances, one has to apply to the Court or Tribunal and then pass such order. Since the Industrial Disputes Act is a social piece of legislation maintaining of status quo is automatic as per, the statute. However, right of the employer is to vary subject to the order to be passed by the Court or Tribunal. The employer will have to make an application under Section 33(2)(b) and proviso thereunder for getting an approval from the Court or Tribunal to that extent. Therefore, the statute has protected a workman by an automatic operation which an only be varied by employer by obtaining necessary permission. Therefore, this is the true import of the social piece of legislation. Now the question is how far the scope and ambit of Section 33 will be stretched to give the protection to a workman. This is necessary for the reason that there should not be any misuse of power of the Court or Tribunal in favour of the workman in the garb of social piece of legislation. Section 33 is to be read as a whole but not in a piecemeal manner. From the plain reading of the Section 33 it appears that during the pendency of any proceeding no employer shall take an adverse step against a workman. If any misconduct is done by such workman not connected with the, dispute and if the employer/management feels that he will be dismissed from the service or otherwise be dealt with, such management can seek approval of the authority, Court, Tribunal etc. There is also a reason behind it. The reason is to avoid the multiplicity of the proceeding. The statute is made not only to avoid the multiplicity of the proceeding but also to minimise the time consumption. So far as the scope and ambit of Section 33A is concerned, workman has right to bring to the notice of the authority or Court or Tribunal about any contravening factor by the employer/management during the pendency of the proceeding. Hence, Section 33A can be said to be a remedial statute against non-performing the obligation on the part of the employer/management under Section 33 of the Act,
6. Therefore, as a whole, it relates to action in between the persons within whom the lis is pending. Any unconnected matter, not being such workman and the management, cannot be said to be a subject matter of approval under Section 33 or under Section 33A of the Industrial Disputes Act, 1947. The important ingredient of Section 33 is that a workman who claims contravention of the section, must not only establish that there has been an alteration of the conditions of service applicable to him and that the said alteration has caused him prejudice. He must also establish, what is most crucial, that he is a workman concerned in the dispute which is pending because the alteration was effected during the pendency of the dispute gives jurisdiction to an authority enumerated in Section 33 to take cognizance of a contravention of the section.
7. Under Section 2(k) of the Industrial Disputes Act, 1947, ‘industrial dispute’ means any dispute between employer and employer or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with conditions of labour of any person. In the instant case, it is a dispute between the management and the workman for the purpose of considering the denial of permanency of a workman by the management. The union represented the case on behalf of such workman.
8. There are various types of cases to be adjudicated by the Court and/or Tribunal. In some cases there might be individual impact and in some cases there might be collective impact. Whenever the Court or Tribunal adjudicates the cause it will definitely find out the nature of the cause before entertaining an application under Section 33 or 33A of the Act. If it is seen that although union represents the case of one workman and that too for his individual cause, the management is not armless in utilising any weapon on account of any misconduct by other workman being member of such union. Membership or non-membership with the union is not the cause of action but the cause of action is the applicability of the award. Suppose a strike or lock-out or closure is the subject matter of dispute before the Tribunal then it relates to all the workmen on whose behalf the union is espousing the cause. Therefore, for an abundant caution it can be said that the management should take permission of the Court or Tribunal. But when the question of permanency of individual workman being member of the union is the subject matter of dispute before the Tribunal then the same is restricted only in respect of the self-same individual because the scope and ambit of the litigation cannot be enlarged by taking a fictitious plea of espousing the cause by the union on behalf of the workmen. The cause of action in between the workman and the management under Section 33A of the Act is totally distinct and different from the cause of action in between the workman and the management in the main industrial dispute regarding the permanency of service of such workman. Whether the dispute is in between the individual workman and the management or the union on behalf of the workman and the management is not relevant but whether the effect of the award is applicable in rem or in personam is relevant for due consideration. Whenever a cause of action is in personam such cause cannot be applicable to other person who is unconnected with the cause irrespective of the nature of representation of the workman either by the union or by an individual. I am, not for a moment, eager to say that the workman who is not directly concerned is not entitled to be benefited under Section 33 or 33A of the Act. According to me, both who are directly or indirectly involved can be entitled to get relief. The true import is that a workman on whose behalf the dispute has been raised as well as those who would be bound by the award are to be treated as workmen concerned in the dispute. This does not mean that every member of such union will be workman concerned for any matter whatsoever even if he has no semblance of connection or interest with the dispute. It would be necessary for the workman to show as to how he is concerned with the earlier dispute raised and pending before the Labour Court or Industrial Tribunal for determination. The observation of the Tribunal goes directly against such well-settled principles of law. The Tribunal observed as follows:
“It appears from the reference that though the issue was whether denial of permanency of Ashok Kumar Prosad by the management was justified or not, when the union referred the matter of Ashok Kumar Prosad it seems to be that the dispute was in respect to the workmen attached to the company. Therefore, the present application has nexus with the previous case.”
9. There are two other important aspects which are to be considered by this Court. Firstly, when the dispute between a workman and management is not falling under Section 33 of the Act even thereafter the management will have to obtain an approval of the Industrial Tribunal or not. Secondly, what prevented the Court from taking this issue as preliminary issue before bypassing the final award when it was called upon by the management.
10. So far as the first point is concerned Section 33A cannot have any independent leg to stand unless and until there is violation on the part of the management under Section 33 of the Act. Hence, the observation of the Tribunal immediately after the aforesaid concluded portion to the extent “besides that I find that the company did not file any application under Section 33(2)(b) of the Industrial Disputes Act for the approval of the action taken by the management against the concerned workman Sri Bishnu Deo Yadav, to this Tribunal, thereby the company contravened the provision under Section 33 of the Industrial Disputes Act and as such the workman has got right to file this application under Section 33A of the Act for adjudication” is wholly unsustainable. Section 33A is the consequential effect of contravention of Section 33(2)(b) by the management. Therefore, the very sentence starting with the word “besides” shows the independent face value of Section 33A irrespective of the result of 33(2)(b) which is untenable in law. Application under Section 33A ipso facto cannot give rise to a cause of action as against the management unless and until a failure on the part of the management under Section 33(2)(b) is proved. Therefore, when this Court/Tribunal held that there is no justiciability of making an application by the management under Section 33(2)(b) of the Act, the application of the workman under Section 33A of the Act is non-est in the eye of law. Mere making the application cannot establish the cause of making application. Therefore, when cause is not available such application has to be declared as infructuous.
11. The last question is as to what prevented the Court/Tribunal from deciding this issue as preliminary issue when it was called upon by the management. I am not for a moment going to say that the Court/Tribunal cannot decide this issue after passing the final award. But it is a question of property. Whenever any incidental issue comes forward in the midst of the hearing of the main issue then the Court or Tribunal should always try to clear up such incidental issue before finalisation of the main issue. The incidental issue herein is whether the respondent/workman has any nexus or connection with the main issue or not and if such main issue is decided keeping the incidental issue open. In such case possibility of improper adjudication cannot be ruled out.
12. Learned counsel for the workman cited a judgment reported in 1989(2) LLJ 424 (A.P. Electrical Equipment Corporation Sanathnagar, Hyderabad v. B. Veeriah and Ors.) to establish that even though no formal application is filed by the management to decide the issue whether the workmen are concerned in the pending dispute, since it is a question of jurisdiction, it is incumbent on the part of the Tribunal to record a finding on the above issue. According to me, nobody is debarred from making such type of applications but the question of maintainability as well as justiciability are to be taken up on the laying down principle. Totally irrelevant consideration cannot be made applicable at all. In 1998(II) LLJ 3 (Indain Smelting and Refining Co. Ltd, v. Subhash Vishnu Patil and Anr.) it was held by the Court/Tribunal that foundation of making complaint under Section 33A is contravention of Section 33 by employer during pendency of the proceedings. If no proceedings under Section 33A were pending, complaint of contravention of Section 33 cannot lie. In 1991(63) FLR 9 (Management, Daimik Naueen Duniya, Jabalpur v. The Presiding Officer, Labour Court, Jabalpur and Ors.)(D.B.) whereunder complaint under Section 33A is envisaged only when employer contravenes the provisions of Section 33 during the pendency of the proceedings. The prohibition contained in Section 33 as to alteration of the service conditions applicable to any workman to his prejudice must be in regard to a matter connected with the dispute.
13. Therefore, on the basis of relevant considerations of fact of law, I have no other alternative but to set aside the order impugned above passed by the learned Judge 8th Industrial Tribunal being order No. 41 dated 27 September, 2002. However, no order is passed as to costs.
Let an urgent xeroxed certified copy of this judgment, if applied for, be given to the learned advocates for the parties within two weeks from the date of putting the requisites.