Amendment status not verified — confirm the current text below against the official source.
Approval not granted If approval is not granted the order of dismissal or discharge shall not be operative and the employee concerned shall be deemed to be in service; G.K. Sengupta v. Hindustan Construction Co. Ltd., 1994 LLR 550 (Bom). Permission should be refused if the Tribunal is satisfied that the management’s action is not bona fide or that the principles of natural justice have been violated or that the material on the basis of which the management came to a certain conclusion would not Justify any reasonable person in coming to such a conclusion; G.K. Sengupta v. Hindustan Construction Co. Ltd., 1994 LLR 550 (Bom). Effect of court’s approval of dismissal Termination of services of a Workman (dismissal) will relate back to the date of original order of termination, if reference under section 10 of the Act has been made and the Labour Court gives its approval to such dismissal; Engineering Laghu Udyog Employees’ Union v. Judge, Labour Court and Industrial Tribunal, 2004 LLR 331. Effect of refusal Conditions contained in the proviso to section 33(2)(b) are mandatory in nature and their non-compliance would render the order of discharge or dismissal void or inoperative. If a Tribunal refuses to grant approval sought for under section 33(2)(b) of the Act, the effect of it shall be that the order of discharge or dismissal had never been passed and consequently the workman would be deemed to have continued in service entitling him to the benefits available. It is also made clear that not making an application under section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to section 33(2)(b) of the Act; Indian Telephone Industries Ltd. v. Prabhakar H, Manyarg, 2003 LLR 68. Entitle to complaint Violation of the provisions of section 33 of the Act entitles the workman to file a complaint under section 33A thereof and makes the employer liable to be The Industrial Disputes Act, 1947 punished. It, however, does not automatically entitle the employee to claim reinstatement; Kiwti Lal v. State of Haryana, 1994 LLR 212 (P&H). Multi- union Where there are more than one unions in operation, every union will have to be given the representation; Maharashtra State Road Transport Corporation v. Conciliation Officer, 1994 LLR 196 (Bom) . 1 [33A. 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 - 2[before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal] any employee aggrieved by such contravention, may make a complaint in writing, 3[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.] Case Law Nature of conditions Conditions laid down in section 33A are preliminary and collateral upon which jurisdiction of the Industrial Tribunal depends; Management of Dainik Naveen Duniya v. Presiding Officer, labour Court, (1991) 63 FLR 9 (MP). 1 Ins. by Act 48 o£ 1950, Section 34 and Schedule (w.e.f. 20.5.1950). 2 Subs. by Act 46 of 1982, Section 18, for “before a Labour Court, Tribunal or National Tribunal” (w.e.f. 21.8.1984). 3 Subs. by Act 46 of 1982, Section 18, for certain words (w.e.f. 21.8.1984). The Industrial Disputes Act, 1947 1[33B. Power to transfer certain proceedings. — (1) The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a Labour Court, Tribunal or National Tribunal and transfer the same to another Labour Court, Tribunal or National Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal or National Tribunal to which the proceeding is so transferred may, subject to special directions in the order of transfer, proceed either de novo or from the stage at which it was so transferred: Provided that where a proceeding under section 33 or section 33A is pending before a Tribunal or National Tribunal, the proceeding may also be transferred to a Labour Court. (2) Without prejudice to the provisions of sub-section (1), any Tribunal or National Tribunal, if so authorised by the appropriate Government, may transfer any proceeding under section 33 or section 33A pending before it to any one of the Labour Courts specified for the disposal of such proceedings by the appropriate Government by notification in the Official Gazette and the Labour Court to which the proceeding is so transferred shall dispose of the same.] Case Law No jurisdiction The Labour Court has no jurisdiction suo motu to transfer the proceedings to any other court; Bernet Coleman & Co. Ltd. v. State of Punjab, (1992) 64 FLR 449 (P&H). 2[33C. Recovery of money due from an employer.— (1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of 3 [Chapter VA or Chapter VB] the workman himself or any other person authorised by him in writing in this behalf, or, in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him, and if the appropriate Government is satisfied that 1 Ins. by Act 36 of 1956, Section 23 (w.e.f. 10.3.1957). 2 Section 33C Ins. by Act 36 of 1956, Section 23 (w.e.f. 10.3.1957) and Subs. by Act 36 of 1964, Section 19 (w.e.f. 19.12.1964). 3 Subs. by Act 32 of 1976, Section 4 for “Chapter VA” (w.e.f. 5.3.1976). The Industrial Disputes Act, 1947 any money is so due, it shall issue certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue: Provided that every such application shall be made within one year from the date on which the money became due to the workman from the employer: Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the applicant had sufficient cause for not making the application within the said period. (2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government 1[within a period not exceeding three months]: 2[Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do, he may, for reasons to be recorded in writing, extend such period by such further period as he may think fit.] (3) For the purposes of computing the money value of a benefit, the Labour Court may, if it so thinks fit, appoint a Commissioner who shall, after taking such evidence as may be necessary, submit a report to the Labour Court and the Labour Court shall determine the amount after considering the report of the Commissioner and other circumstances of the case. (4) The decision of the Labour Court shall be forwarded by it to the appropriate Government and any amount found due by the Labour Court may be recovered in the manner provided for in sub-section (1). (5) Where workmen employed under the same employer are entitled to receive from him any money or any benefit capable of being computed in terms of money, then, subject to such rules as may be made in this behalf, a single application for the recovery of the amount due may be made on behalf of or in respect of any number of such workmen. Explanation.—In this section “Labour Court” includes any court constituted under any law relating to investigation and settlement of industrial disputes in force in any State.] 1 Ins. by Act 46 of 1982, Section 19 (w.e.f. 21.8.1984). 2 Added by Act 46 of 1982, Section 19 (w.e.f. 21.8.1984). The Industrial Disputes Act, 1947 Case Law Cessation of master and servant relationship The proceedings under section 33C(2) are in the nature of execution proceedings and once it is shown that the relationship of master and servant has come to an end, rightly or wrongly, it is not open to the Labour Court to proceed on the basis that it still exists and commute the monetary benefits to which the workman may, in the event, entitled to; Canara Bank v. Presiding Officer, 1994 LLR 189 (P&H). Documentary evidence It was for the employers to have placed before the Labour Court the documentary evidence to show what the total pay packet of the employees was and what were the components of such pay packets of all employees. In the absence of such material and evidence, order of Labour Court is just, fair and correct in accordance with law; National Textile Corporation (South Maharashtra) Ltd. v. Vijay Kumar Agarwal, (2002) IV LLJ (Supp) Bom 909. Entitle to benefits Once there is an admission of the existing right of the workman by the employer in regard to the benefit which the former is entitled to and receive from the latter, section 33C(2) of the Act would come into play; M.D., Oswal Hosiery (Regd.) v. D.D. Gupta, 1994 LLR 487 (Del). Limitation period Claim for overtime wages after a delay of 18 years, without giving any reason for the unusual delay of 18 years, cannot be encouraged, even though there is no limitation prescribed under section 33C(2) of the Act, And, hence the order of the Labour Court deserves to be quashed and set aside; Union of India v. Narayana M, (2002) IV LLJ (Supp) Bom 912. The cause of action created in favour of workman under section 33C(2) of the Act should in normal circumstances survive to the heirs; Rameshwar Manjhi (deceased) through his son Lakhiram Manjhi v. Management of Sungramgarh Colliery, 1994 LLR 241 (SC). No jurisdiction Labour Court had no jurisdiction to adjudicate claim in proceedings under section 33C(2); Uttar Pradesh State Road Transport Corporation v. State of Uttar Pradesh, (2002) IV LL] (Supp) NOC 9.