You raised a good question.If you look at section. 33 of the Industrial disputes Act , it has been devided into five sub-sections. So far as it relates to your question, sub-sections (4)& (5) are not relavnat.Now let us tarin our focus on sub-sections(1)(2) &(3).All the three sub-sections impose a prohibition or a condition on the employer to alter/change the servcie conditions of any workman or todismiss/discharge him during pendency of conciliation or adjudication proceedings without obtaining approval from the concerned authority.
There is no distinction between an ordinary workman and a protected workman so far as Sub-Sec.(1) is concerned. The distiction is only with regard to sub-section (2) . While Sub-section(2) permits an employer to pass an order of dismiss/discahrge against any workman in respect of a misconduct committed by any workman but enforce it after obtaining approval, subsection (3) says if such workman is a protected workman, you cannot pass an order even in respect of a misconduct not connected with the dispute without first getting approval from the concerned authority.that is the distinction.
25th April 2013 From India, Mumbai
Yours is a very useful question in the back-drop of the arrangement of distinct sections and sub-sections under the same serial No.33 in Chapter VII of the I.D Act,1947 under the head 'Miscellaneous', for it will be a little bit confusing to freshers at the first glimpse.Hope you got the point in Mr.Saikumar's brief answer.However, in order to keep our memory afresh, I would like to add the following in this regard:
Prior to 1956, no employer could effect any prejudicial change in the service conditions of his workmen nor punish any workman by way of discharge or dismissal for any misconduct, if any industrial dispute concerning his industry was pending conciliation, arbitration or adjudication thus making an inroad into his prerogative to effect change if any depending upon business exigencies or to discipline any misconduct derived from the Common Law of Master and Servant.In order to set it right, a series of amendments were carried out in the years 1956,1964 and 1982 out of which we have the present text. Now, let us analyze the sections one by one to understand their contra-distinctions as follows:
SECTION 33: The object of this section as a whole is to restrict the powers of the employer to effect changes in the service conditions of his workmen and punishing them by way of discharge, dismissal etc., for any alleged misconduct, if any, during the pendency of any industrial dispute before the concerned authorities. The twin purpose aimed at to be achieved are curbing the escalation of the existing dispute and checking victimization to pave way for the resolution of the pending dispute by the concerned authorities in a peaceful atmosphere.Sub-section (1) of S.33 deals with effecting changes in service conditions and punishing any workman by way of discharge, dismissal for any misconduct CONNECTED WITH THE PENDING DISPUTE.Before embarking upon such action, the employer is bound to obtain prior permission from the concerned authority.Sub-section (2) of S.33 empowers the employer to effect the change or orders of discharge or dismissal for misconduct first if they are NOT CONNECTED WITH THE PENDING DISPUTE subject to the condition of getting approval of the authority concerned in the manner prescribed there in. Sub-section(3) of S.33 deals EXCLUSIVELY with the cases of such things in respect of PROTECTED WORKMEN whose selection process is described in in sub-sections (4) and (5) of S.33. T he non-obstante clause in ss(3) postulates whether the proposed change in the service condition or the punishment in respect of protected workmen is CONNECTED OR NOT CONNECTED WITH THE PENDING DISPUTE, prior permission should be obtained in writing from the authority dealing with the dispute.
I hope this substantiates what Mr.Saikumar has briefly stated and clears the cloud of doubt!
27th April 2013 From India, Salem
Thank you very much for your brief reply. I have got clarification for my doubt.
As per Sec 33 (3), when there is any proceedings pending against any protected workmen, if the employer wants to change the conditions of service or dismiss him, whether it is connected with the dispute or not, prior permission is required from the concerned authority.
I got a conclusion from the above that, If there is no proceedings pending before any authority, if any protected workmen committed any misconduct which is in grave nature, We can dismiss him from the service after conducting domestic enquiry. Am I correct Sir?
27th April 2013 From India, Hyderabad
27th April 2013 From India, Salem
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21st February 2014 From India, Gurgaon