IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.3633 of 2022 a/w CWP No.3157 of 2022 Decided on: 30.05.2025 CWP No.3633 of 2022 M/s Zen Technologies Ltd … Petitioner Versus State of Himachal Pradesh and others … Respondents ___________________________________________________________________ CWP No.3157 of 2022 Arun Thakur and others …Petitioners Versus M/s Zen Technologies Limited …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes ____________________________________________________ _ For the petitioners : Mr. Anup Rattan, Senior Advocate, with Mr. Arun Kaushal, Advocate, in CWP No.3633 of 2022. Mr. Suneel Awasthi, Advocate, for the petitioners, in CWP No.3157 of 2022. For the respondent : Mr. Pushpinder Jaswal, Additional Advocate General, for respondent- State, in CWP No.3633 of 2022. Mr. Suneel Awasthi, Advocate, for respondents No.3 to 9, in CWP No.3633 of 2022. Mr. Rajesh Kashyap, Advocate, for the respondent, in CWP No.3157 of 2022. Ajay Mohan Goel, Judge (Oral) CWP No.3633 of 2022 By way of this writ petition, the petitioner-Company has challenged order dated 13.01.2022, passed by the learned Presiding 1 Whether reporters of the local papers may be allowed to see the judgment? 2 Judge, H.P. Industrial Tribunal-cum-Labour Court, Shimla, in application No.40 of 2018, titled Arun Thakur and others versus M/s Zen Technologies Ltd., vide which the complaint filed by the complainants therein under Section 33A of the Industrial Disputes Act, 1947 (hereinafter referred to as the Act), has been decided by the learned Labour Court in the following terms:- “As a sequent effect to my findings on issues No.1 to 3 above, the application filed under Section 33A of the Act is allowed. Resultantly, the each of the petitioner is held entitled to lump sum compensation of Rs.75,000/- (Rs. Seventy Five Thousand only) each to the applicants). The respondent directed to pay the aforesaid amount to each petitioner as compensation in lieu of their illegal termination. The amount shall be paid within three months of this order failing which the respondent shall pay interest @ 9% per annum till the realization of the amount. Let a copy of this award/order be also communicated to the appropriate government for its due publication in the official gazette forthwith. File after completion be consigned to records. Ordered accordingly.” 2. Learned Senior Counsel appearing for the petitioner- Company argued that the impugned order is not sustainable in the eyes of law for the reason that the learned Labour Court erred in not appreciating that no complaint under Section 33A of the Industrial Disputes Act was maintainable in the facts of the case as the action of the petitioner-Company which was assailed in terms of the complaint filed under Section 33A of the Industrial Disputes Act was not governed by the provisions of Section 33 of the Industrial Disputes Act, 1947. Learned Senior Counsel submitted that in the present case, the application filed under Section 33A of the Industrial Disputes Act was filed on the ground that the 3 complainants were workers with the petitioner-Company, who had raised a demand notice before Labour Inspector Nalagarh raising issues regarding increasing their wages/bonus, increments, gratuity and payment of dearness allowances etc. After the filing of the demand notice, the company transferred the complainants to Hyderabad on the pretext of closure of their Unit at Nalagarh. The transfer order was issued to pressurize the complainants to withdraw the demand notice. This act of the Company as per the complainants was brought to the notice of Labour Inspector. However, during the pendency of conciliation proceedings before Labour Inspector, complainants received retrenchment notices which were sent by the respondent-Company dated 29.08.2017. Said act of the Company was assailed by way of the application filed under Section 33A of the Industrial Disputes Act. Learned Senior Counsel submitted that it is the own case of the complainants /workers that their services were retrenched by the Company. He drew attention of the Court to Section 33 of the Act and submitted that the provisions of Section 33 of the Act were attracted only where a workmen was “discharged” or “dismissed”, whereas, in the present case, as the workmen were “retrenched” by following the process, neither Section 33 nor Section 33A were attracted and this extremely important aspect of the matter was ignored by the learned Labour Court while passing the impugned order. 3. On the other hand, leaned counsel for the private respondents argued that the retrenchment of the services of the 4 workmen was akin to discharge or dismissal and, therefore, there was no infirmity in the order passed by the learned Labour Court. He stressed that the retrenchment of the services of the workmen was an act of punishment and the workers in fact stood dismissed from service and the same was duly covered under provisions of Section 33 of the Act. Accordingly, he prayed that the present petition being devoid of any merit be dismissed. 4. I have heard learned counsel for the parties and have also carefully gone through the order under challenge as well as documents appended with the writ petition. 5. Before proceedings further, at this stage, it is relevant to refer to Section 33 of the Act. Section 33(1) and Section 33(2), which are relevant for the purpose of the decision of this case, are being quoted hereinbelow:- “(1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before 66[an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall,— (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute 66[or, where there are no such standing orders, in accordance with 5 the terms of the contract, whether express or implied, between him and the workman],— (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not connected with the dispute, or discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.” 6. In terms of Sub-section(1) of Section 33 of the Act, during the pendency of any conciliation proceedings before a Conciliation Officer or a Board or of any proceeding before an arbitrator or a Labour Court etc., in respect of an industrial dispute, no employer shall in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding or for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending. Sub-section (2) of Section 33 of the Act further provides that during the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether 6 express or implied, between him and the workman, alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman, provided that no such workman shall be “discharged or dismissed,” unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. 7. According to the learned counsel for the workmen, Sub- section(2) of Section 33 of the Act was violated by the Company while retrenching the workmen. 8. Having carefully perused the statutory provisions of Sub-section(2) of Section 33 of the Act, this Court is of the considered view that this Subsection is only attracted when the services of a workmen is either discharged or the workmen is dismissed by the employer. In this case, the workmen were retrenched. They were neither discharged nor were they dismissed. 9. A perusal of the complaint filed under Section 33A of the 1947 Act demonstrates that it was averred in the same that a perusal of retrenchment notice would show that the same was not retrenchment but removal of the services of the complainants for not joining the transferred station at Hyderabad. It was also averred in the complaint that as the removal of the complainants was during 7 the pendency of the proceedings before the Labour Inspector, therefore, the said removal was against the provisions of Section 33 of the 1947 Act, more so, when the removal was without holding any inquiry and without issuance of any show cause to the workmen. It was also averred therein that the complainants were forced to encash the cheques which were handed over to them alongwith the retrenchment notice. Reply to the said compliant demonstrates that it was specifically mentioned therein by the employer Company that the provisions of Section 33A of the 1947 Act were not attracted in the facts of the case and that the retrenchment was by following the provisions relating to retrenchment provided in the 1947 Act. 10. Section 2(oo) of the 1947 Act incidentally defines “retrenchment” and Section 2(oo) of the same defines retrenchment as under:- Section 2(oo) “Retrenchment” means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include— (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or 50[(bb) termination of the service of the workman as a result of the non-renewal of the contract of employment between the employer and the workman concerned on its expiry or of such contract being terminated under a stipulation in that behalf contained therein; or] (c) termination of the service of a workman on the ground of continued ill-health.” 11. Coming to the facts of the present case, in terms of the order dated 29.08.2017 which was assailed by the workmen before 8 the learned Labour Court under Section 33A of the 1947 Act, copy whereof is appended as Annexure P-9, the services of the workmen were retrenched w.e.f. 29.08.2017 by mentioning in the retrenchment notice that the provisions of Section 25F of the Industrial Disputes Act were being complied with. 12. In this backdrop, when, in terms of the notice of retrenchment, the services of the workmen were retrenched and they were neither discharged nor dismissed, application under Section 33A of the 1947 Act against the notice of retrenchment was not maintainable. In terms of Sub-section(2) of Section 33 of the Act, the procedure prescribed in the proviso thereof has to be followed only when the workman is either being discharged or dismissed. There is no mention therein that said procedure also has to be followed when the workman is being retrenched. Section 2(A) of the 1947 Act deals with dismissal etc. of an individual workman and it provides that the dismissal etc. of an individual workman to be deemed to be an industrial dispute. Sub-section (1) thereof demonstrates that the words ‘discharge’, ‘dismissal’ and ‘retrenchment’ have been used disjunctively from each other, meaning thereby that ‘discharge’ and ‘dismissal’ cannot be construed to be synonyms of ‘retrenchment’. This extremely important aspect of the matter was not appreciated by the learned Labour Court while passing the impugned order. In fact, a perusal of the impugned order demonstrates that the adjudication of the application filed under Section 33A of the Act was on the premise that the order dated 29.08.2017 was issued 9 during the pendency of the dispute between the parties without appreciating that the services of the workmen were not dismissed or discharged but they were rather retrenched. In fact, legality of retrenchment is not being touched upon by this Court in these proceedings and all that this Court has to decide in these proceedings is whether in the facts of the present case an application under Section 33A of the Industrial Disputes Act was maintainable or not. 13. As has already been observed by this Court hereinabove, because in terms of the notice of retrenchment, neither the workmen were discharged nor they were dismissed, the order of retrenchment per se could not have been assailed under Section 33A of the Industrial Disputes Act. If the workmen were aggrieved by the order of retrenchment, their remedy was not under Section 33A of the Industrial Disputes Act, but under other provisions thereof. Therefore, the application filed by the workmen under Section 33A of the Act against the notice of retrenchment was bad and adjudication thereof in terms of the impugned order by learned Labour Court is also thus bad in law. 14. In the light of above discussions, this writ petition succeeds. Impugned order dated 13.01.2022, passed by the learned Labour Court in application No.40 of 2018, titled as Arun Thakur and others versus M/s Zen Technologies Ltd., is quashed and set aside, but without any observations on the correctness of the notice of retrenchment that was issued by the petitioner-Company. 10 CWP No.3157 of 2022 15. In the light of the judgment passed by this Court in CWP No.3633 of 2022 of even date, this petition is dismissed. (Ajay Mohan Goel) Judge May 30, 2025 (Vinod)