What's the Real Difference Between Section 33(1) and 33(3) of the ID Act? Seeking Clarity on Worker Protections

Understanding Section 33 of the ID Act

I have the following doubt regarding Sec 33 of the ID Act. Sec 33(1) deals with common workers who are involved in misconduct under conciliation proceedings. In such cases, the employer should not change the conditions of service relating to the dispute. If he wants to dismiss the worker, he has to seek permission from the concerned authority.

Sec 33(3) also conveys a similar message, but it pertains to protected workmen. My question is, when both of the above sections convey the same idea, what is the difference between the two? Additionally, what additional protection is provided to protected workmen?

Kindly clarify.

Regards,
M S GIRI

Dear Giri, you raised a good question. If you look at Section 33 of the Industrial Disputes Act, it has been divided into five subsections. So far as it relates to your question, subsections (4) and (5) are not relevant. Now let us train our focus on subsections (1), (2), and (3). All three subsections impose a prohibition or a condition on the employer to alter/change the service conditions of any workman or to dismiss/discharge him during the 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 Subsection (1) is concerned. The distinction is only with regard to subsection (2). While Subsection (2) permits an employer to pass an order of dismissal/discharge against any workman in respect of misconduct committed by any workman but enforce it after obtaining approval, subsection (3) says if such a workman is a protected workman, you cannot pass an order even in respect of misconduct not connected with the dispute without first getting approval from the concerned authority. That is the distinction.

Regards,
B. Saikumar
Mumbai

Your question is very insightful regarding the organization of distinct sections and sub-sections under the same serial No. 33 in Chapter VII of the I.D Act, 1947 under the heading 'Miscellaneous.' This arrangement may appear somewhat confusing to newcomers at first glance. I trust you understood the point in Mr. Saikumar's brief response. To further elaborate and refresh our memory, I would like to supplement the information as follows:

Prior to 1956, no employer could make any detrimental alterations to the service conditions of their workers or penalize any worker through discharge or dismissal for any misconduct if an industrial dispute related to their industry was under conciliation, arbitration, or adjudication. This encroached upon the employer's authority to make changes as necessary based on business needs or to discipline misconduct, a tradition derived from the Common Law of Master and Servant. Amendments were subsequently made in 1956, 1964, and 1982 to rectify this, culminating in the current text. Let's now examine each section individually to grasp their distinctions, as outlined below:

SECTION 33:

The primary objective of this section is to limit the employer's authority to modify the service conditions of their workers and to discipline them through discharge, dismissal, etc., for any alleged misconduct during the pendency of an industrial dispute before the relevant authorities. The dual goals are to control the escalation of existing disputes and prevent victimization, thereby facilitating the resolution of pending disputes in a harmonious environment.

Sub-section (1) of S.33 addresses alterations in service conditions and disciplinary actions related to the pending dispute. Before taking such actions, the employer must seek prior approval from the relevant authority.

Sub-section (2) of S.33 grants the employer the authority to implement changes or issue orders of discharge or dismissal for misconduct that are NOT RELATED TO THE PENDING DISPUTE, subject to obtaining approval in the prescribed manner.

Sub-section (3) of S.33 specifically deals with matters concerning PROTECTED WORKERS, whose selection process is detailed in sub-sections (4) and (5) of S.33. The non-obstante clause in sub-section (3) implies that regardless of whether the proposed changes in service conditions or disciplinary actions for protected workers are related to the pending dispute or not, written permission must be obtained from the relevant authority handling the dispute.

I trust this elaboration reinforces what Mr. Saikumar briefly conveyed and dispels any lingering doubts!

Regards

Thank you very much for your brief reply. I have received clarification for my doubt. As per Sec 33(3), when there are any proceedings pending against any protected workmen, if the employer wishes 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.

From the above, I understand that if there are no proceedings pending before any authority, and if any protected workmen commit any serious misconduct, we can dismiss him from the service after conducting a domestic enquiry. Am I correct, sir?

Regards,
GIRI

Yes, Giri, you are correct. As explained already, the restrictions on the rights of the employer are effective only in the event of any dispute concerning his establishment pending conciliation, arbitration, or adjudication. Otherwise, he is at liberty to change the service conditions and discipline serious misconducts by way of discharge or dismissal, including that of protected workmen, by observing usual legal formalities.

We want to dismiss any office bearer of any registered trade union. We shall take permission from the concerned authority, whether there is any dispute pending or not.

Every office bearer of the union cannot be treated as a protected workman. If an office bearer is not a protected workman, he will be treated on par with any other workman for the purpose of Section 33 of the Industrial Disputes Act. Therefore, if any industrial dispute is pending in which the office bearer is concerned, you need to take permission from the concerned authority before whom the dispute is pending.

Regards,
B. Saikumar

I have a query: on what grounds can a company dismiss the application filed by the union office bearer for the protected workmen? Is it at the discretion of the company to accept or reject the application for protected workmen? Regards, Anil Chauhan