JUDGMENT : DEEPAK ROSHAN, J. 1. Heard the learned counsel for the parties. 2. The Petitioner Food Corporation of India has filed this Writ Petition against the award/order dated 14.01.16 passed by the Learned Central Government Industrial Tribunal No.1, Dhanbad, in Complaint Case No. 06/2014 setting aside the decision dated 27.09.13 by which it was decided not to regularize the service of the Respondents/Workmen and also setting aside decision to terminate their service from Food Corporation of India. 3. The brief facts of the case are that the Food Corporation of India is a Government Corporation constituted under the Food Corporations Act, 1964 and is owned and controlled entirely by the Government of India. The Respondents/Workmen in this case were initially engaged as casual daily wage workers in Food Storage Depot, Koderma and were working since March 1984. The Respondents were disengaged/retrenched without compliance with the requirement of payment of compensation provided under Section 25F of the Industrial Disputes Act, 1947. They raised an industrial dispute against the action of retrenchment which was referred to the Central Government Industrial Tribunal No. 2 at Dhanbad and registered as Reference Case No. 94/1995. This reference was decided in favour of the Respondents by an award dated 17.09.1996 with a direction for reinstatement in service and the Food Corporation of India was also directed to regularize their service with effect from 1.09.1985 without any back wages. 4. The record further reveals that this award passed in Reference 94/1995 was challenged in C.W.J.C No. 559/1997(R) before the Patna High Court (Ranchi Bench) and the Writ Petition was allowed in part by order dated 04.11.1997 modifying the award by setting aside the direction to regularize as it was beyond jurisdiction of the Tribunal. The Petitioner-Management was directed to consider the case of the concerned workman for regularization of service. Both sides moved before the Division Bench by preferring appeals against this order of the Single Judge. The Corporation’s appeal was registered as LPA No. 597/1997 (R) and was confined to the order of reinstatement. The Respondents’ appeal was registered as LPA No. 547/1997 (R) and was against the direction for setting aside direction for regularization. Both sides moved before the Division Bench by preferring appeals against this order of the Single Judge. The Corporation’s appeal was registered as LPA No. 597/1997 (R) and was confined to the order of reinstatement. The Respondents’ appeal was registered as LPA No. 547/1997 (R) and was against the direction for setting aside direction for regularization. The Petitioner could not obtain stay at appellate stage which was turned down by order dated 06.04.1998 in LPA No. 597/1999(R) and it therefore, approached Hon’ble Supreme Court in SLP(Civil) No. 12393 of 1998 and by order dated 04.01.1999 the Management was directed to first reinstate all 24 casual employees. On 12.02.1999, The District Manager, FCI, Hazaribagh issued an order of reinstatement in service. The case was disposed of by the Hon’ble Apex Court on 15.02.1999 restoring the direction that the Management would take decision regarding regularisation of service of these workmen. The appeal of the Petitioner-FCI before the High Court being LPA No. 579/1997(R) was dismissed on 11.05.2010. The other appeal, LPA 547/1997 (R) was not pressed by the workmen. 5. Pursuant thereto; the District Manager, FCI, Hazaribagh modified the reinstatement order by reinstating all 24 casual workmen on the post of “watchman” with effect from 01.9.1985. The result is that on and after 01.07.2000 all these 24 casual workers were given permanent status and post of “Watchman” which is a sanctioned Category-D post in Food Corporation of India. They were given the pay scale, medical leave, casual leave and other service benefits applicable to regular and permanent employees of Food Corporation of India. Subsequently, The General Manager (Region), Jharkhand, acting in pursuance of the order of the High Court [order dated 4.11.1997 passed in C.W.J.C No. 559 of 1997 (R) ] to consider the case of regularisation of these workmen, passed an order dated 27.09.2013 that these 24 workers cannot be regularized in service. Strong reliance was placed on the case of Secretary, State of Karnataka vs. Uma Devi (2006) 4 SCC This decision led to a show cause notice dated 07.05.2014 to all the 24 workers. They were asked to show cause why their service should not be terminated again on payment of retrenchment compensation. 6. The Respondents were aggrieved with the decision not to regularize their service and the notice and could have raised industrial dispute. They were asked to show cause why their service should not be terminated again on payment of retrenchment compensation. 6. The Respondents were aggrieved with the decision not to regularize their service and the notice and could have raised industrial dispute. However, at that time, an industrial dispute relating to the rate of overtime wages for employees of Food Corporation of India in the Bihar region was pending in The Central Government Industrial Tribunal No. 1 at Dhanbad. This Reference No. 138/1997 was pending in relation to all the workers entitled to overtime allowance. The Respondents, instead of raising industrial dispute before the Conciliation Officer under Section 10 of the Industrial Disputes Act, 1947, approached the Central Government Industrial Tribunal No. 1 at Dhanbad and filed a complaint under Section 33A of the Industrial Disputes Act, 1947, which was registered as Complaint Case No. 06/2014. The Respondents alleged that refusal to regularize their service and the subsequent notice of the Management violates Section 33(1) of the Industrial Disputes Act, 1947 which prohibits any change in conditions of service when any dispute is being adjudicated by any Labour Court/Tribunal. 7. The Petitioner – Management filed its Written Statement and raised objection regarding maintainability and jurisdiction on the ground that there was no change in service condition as no final decision was taken by the Management. The Management had only issued a show cause notice which by itself does not bring about any change in the conditions of service of such workmen. Even otherwise, the decision not to regularize was not connected with the pending dispute relating to the rate of overtime wages. 8. The Presiding Officer, Central Government Industrial Tribunal No. 1, Dhanbad tried the case and gave his award dated 14.01.2016 in favour of the workmen by setting aside the order dated 27.09.2013 refusing to regularize the services of the Respondents as well as the alleged termination of service of the workmen. 9. Learned counsel for the petitioner submits that the award/order passed in Complaint Case No. 06/2014 has been challenged on the ground of incorrect exercise of jurisdiction. A complaint under Section 33A of the Industrial Disputes Act, 1947 can be filed only when there is contravention of Section 33 of the Industrial Disputes Act, 1947. 9. Learned counsel for the petitioner submits that the award/order passed in Complaint Case No. 06/2014 has been challenged on the ground of incorrect exercise of jurisdiction. A complaint under Section 33A of the Industrial Disputes Act, 1947 can be filed only when there is contravention of Section 33 of the Industrial Disputes Act, 1947. The learned Advocate representing the Management asserts that there is no violation of Section 33 for the following reasons:- (i) The direction for regularization of workers was set aside by the High Court which attained finality. The Respondents were, therefore, never regularized in service. Their case was considered and a decision was taken by order dated 27.09.2013 not to regularize them in service. There is therefore, no change in the service conditions. (ii) The Respondents were given notice dated 07.05.2014 to show cause as to why their service be not terminated on payment of compensation. The service of these 24 workmen had not been terminated which was incorrectly assumed and therefore, there was again no change in service conditions and no requirement of any approval or permission from the Tribunal. 10. It was also argued that the complaint case was pre-mature as there was no reduction in wages, no termination of service and no change in the service conditions. He contended by referring to the provisions of Section 33 of the Industrial Disputes Act, 1947, that even assuming that the decision not to regularize is a change in the service condition, such change is not connected with the previous dispute relating to rate of overtime wages and therefore, the complaint case under Section 33-A of the Industrial Disputes Act, 1947 was again not maintainable. 11. It has further been argued that these objection relating to maintainability were taken in the written statement and should have been decided as preliminary issues but the Tribunal ignored these vital objections and proceeded with the merits of the case. 12. Per contra, Ld. Counsel for the respondents has submitted that refusal to regularize service of these workmen brings about change in their service condition as all these 24 workers were reinstated not as casual workers but as watchmen which is a regular sanctioned post in Food Corporation of India. These workmen were given all benefits and were treated at par with other regular and permanent employees of Food Corporation of India. These workmen were given all benefits and were treated at par with other regular and permanent employees of Food Corporation of India. They have been transferred and have been subjected to service regulations and, at times even proceeded against for misconduct under the Food Corporation of India (Staff) Regulations, 1971. 13. He further defended the Award by referring to order passed in LPA No. 80/2019 [case involving this Petitioner-Food Corporation of India] which was set aside and overruled by the Hon’ble Supreme Court in Workmen v. Food Corpn. of India, (2023) 8 SCC 116 at page 122 in following terms: 18. Having allowed the workmen to put in regular service to its own benefit for over two decades, the management can no longer claim an indefeasible right to continue with and canvass its challenge to the award, merely because it made its compliance with the award conditional long ago. In the light of their absorption in regular service, these workmen, who may have otherwise opted for employment opportunities elsewhere, altered their position and remained with the FCI. Having placed them in that position, it is no longer open to the management of FCI to seek to turn back the clock. Unfortunately, these crucial aspects were lost sight of by the Division Bench, while dealing with the management's appeal. In that view of the matter, we are not inclined to alter the position obtaining for over two decades, by accepting the legally weighty but essentially pedantic view taken by the Division Bench, ignoring the factual position. 14. Having heard Ld. Counsel for the parties and after going through the records it transpires that this case has a chequered history. On close scrutiny of the facts, it can be concluded that reinstatement in service of the Respondents had become final and binding on the Petitioner-Corporation. It is equally true that the direction for regularization had been set aside and there was no interference even by the Hon’ble Apex Court. The Management, however, chose to appoint the Respondents-workmen on the post of “watchman” and to treat them as regular workers/employees. Later, the Management decided to pass an order clarifying that the service of these Respondents cannot be regularized. It was presumed by the Management that the consequent action of refusal to regularize is retrenchment from service for which a notice was given to the 24 workmen (Respondents). 15. Later, the Management decided to pass an order clarifying that the service of these Respondents cannot be regularized. It was presumed by the Management that the consequent action of refusal to regularize is retrenchment from service for which a notice was given to the 24 workmen (Respondents). 15. The Respondent – Workmen also prematurely rushed to the Tribunal and filed a complaint case under Section 33A of the Industrial Disputes Act, 1947. The scope of adjudication under Section 33-A is the same as a reference case. However, the pre-condition for exercise of jurisdiction under this provision is violation of Section 33 of The Industrial Disputes Act, 1947. In this case admittedly, the direction for regularization of service was set aside by the High Court which attained finality. The subsequent decision not to regularize the service of the workmen and issuing show cause notice does not bring about any change in condition of service. My attention is also drawn to Schedule-III read with Section 9A of The Industrial Disputes Act, 1947, listing all events and circumstances which constitute change in service conditions. It has been argued on behalf of the Respondents that change in rank is also a change in the condition of service. In this case the Respondents were working as “watchman” even though no order for regularization was passed in their favour. However, mere grant of benefits of the post cannot be treated as regularisation of service. Moreover, the Respondents filed complaint alleging contravention of Section 33 of the Industrial Disputes Act, 1947 which needs a close scrutiny. 16. Section 33 of Industrial Disputes Act, 1947 is reproduced below: 33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings .— (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before [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 [or, where there are no such standing orders, in accordance with 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. (3) Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute— (a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or (b) by discharging or punishing, whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending. Explanation.—For the purposes of this sub-section, a “protected workman”, in relation to an establishment, means a workman who, being [a member of the executive or other office bearer] of a registered trade union connected with the establishment, is recognized as such in accordance with rules made in this behalf. (4) In every establishment, the number of workmen to be recognized as protected workmen for the purposes of sub- section (3) shall be one per cent. of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognized as protected workmen. (5) Where an employer makes an application to a conciliation officer, Board, 2 [an arbitrator, a] Labour Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, 5 [within a period of three months from the date of receipt of such application], such order in relation thereto as it deems fit:] 17. The remedy for breach of Section 33 is provided in Section 33A of the Industrial Disputes Act, 1947, which is also extracted below:- 33A. Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceedings.— Where an employer contravenes the provisions of section 33 during the pendency of proceedings [before a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal], any employee aggrieved by such contravention, may make a complaint in writing, [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. 18. The statutory provisions clearly postulate that the pre-condition for exercise of jurisdiction under Section 33A of the Act of 1947 is infringement of Section 33 of The Industrial Disputes Act, 1947. 19. On a careful examination of section 33 of The Industrial Disputes Act, 1947, I find that even if there is change in condition of service, the provisions of Section 33 (1) do not apply. Section 33 (1) applies when the subsequent action is connected with the previous pending dispute. The words used in the statute are “in regard to any matter connected with the dispute”. In this case the previous dispute relates to the rate of overtime wages pending since 1997 which has no nexus to the decision dated 27.09.13 refusing to regularize service of these Respondent-workmen. 20. The words used in the statute are “in regard to any matter connected with the dispute”. In this case the previous dispute relates to the rate of overtime wages pending since 1997 which has no nexus to the decision dated 27.09.13 refusing to regularize service of these Respondent-workmen. 20. Section 33 (2) of The Industrial Disputes Act, on the other hand, allows the employer to bring about change in service conditions or to punish an employee for misconduct when such action has no connection with the previous pending dispute before any Labour Court/Tribunal. Even if the argument of change in service condition is accepted, the case falls under Section 33(2) and not Section 33 (1) of The Industrial Disputes Act. Therefore, this Court is having no hesitation in concluding that there was no infringement of the provisions of Section 33(1) justifying adjudication of complaint. 21. The Hon’ble Apex Court in the case of Blue Star Employees’ Union vs. Ex. Off. Principal Secy. Govt. & Others reported in (2000) 8 SCC 94 while deliberation on the scope of Section 33 has held in Paragraphs no. 4 to 6 as under:- 4. A complaint can be made to the Tribunal under Section 33-A of the Act if there has been violation or contravention of the provisions of Section 33 of the Act and if it is found that there has, in fact, been such a contravention the Tribunal can proceed to adjudicate the dispute contained in a complaint on its merits. A complaint can be made to the Tribunal under Section 33-A of the Act if there has been violation or contravention of the provisions of Section 33 of the Act and if it is found that there has, in fact, been such a contravention the Tribunal can proceed to adjudicate the dispute contained in a complaint on its merits. Thus violation or contravention of the provisions of Section 33 of the Act would be the basic question that arises for consideration and before giving any relief to an aggrieved employee under this section, the Tribunal has to find out whether the employer's action falls within one of the following prohibitions contained in Section 33 of the Act: (i) if the dispute pending adjudication has nothing to do with the alteration in conditions of service of a workman in contravention of Section 33(1)(a) of the Act or alteration of conditions of service of a “protected workman” within Section 33(1) of the Act; (ii) discharges or punishes a workman by dismissal or otherwise for a misconduct connected with the pending dispute without obtaining prior express permission in writing of the appropriate authority as required by Section 33(1)(b) of the Act; (iii) discharges or punishes a “protected workman” by dismissal or otherwise for a misconduct not connected with the pending dispute, without obtaining prior express permission in writing of the appropriate authority as required by Section 33(3)(b) of the Act read with Section 33(1)(b) of the Act; or (iv) discharges or punishes a workman by dismissal or otherwise for a misconduct not connected with the pending dispute, without complying with the provisions of proviso to Section 33(2)(b) of the Act. 5. Thus, the contravention of the provisions of Section 33 of the Act is the foundation for exercise of the power under Section 33 (sic 33- A) of the Act. If this issue is answered against the employee, nothing further survives for consideration or action by the Tribunal under Section 33 (sic 33-A) of the Act. In other words, an application under Section 33-A of the Act without proof of contravention of Section 33 of the Act would be incompetent. If this issue is answered against the employee, nothing further survives for consideration or action by the Tribunal under Section 33 (sic 33-A) of the Act. In other words, an application under Section 33-A of the Act without proof of contravention of Section 33 of the Act would be incompetent. This is the view expressed by this Court in several decisions including the decisions in Punjab National Bank Ltd. v. Workmen [ (1959) 2 LLJ 666 : AIR 1960 SC 160 ] , Punjab Beverages (P) Ltd. v. Suresh Chand [ (1978) 2 SCC 144 : 1978 SCC (L&S) 165 : (1978) 2 LLJ 1 ] , Syndicate Bank Ltd. v. K. Ramanath V. Bhat [ (1967) 2 LLJ 745 : AIR 1968 SC 231 ] . Indeed this Court in Orissa Cement Ltd. v. Workmen [ (1960) 2 LLJ 91 (SC)] while dealing with the identical provisions as contained in Sections 33 and 33-A of the Act in a complaint made under Section 23 of the Industrial Disputes (Appellate Tribunal) Act, 1950 examined this contention that the finding of the Appellate Tribunal in the proceedings instituted under Section 23 of the Appellate Tribunal Act amounted to res judicata and it was not open to the Tribunal to consider the validity or the propriety of the impugned order of discharge in the reference. The Tribunal in that case had held that on the earlier occasion the Appellate Tribunal had found that there was no contravention of Section 22 and that was really decisive of the proceedings and held that the alternative finding made in the said proceedings on the merits was no more than obiter and cannot be pleaded in support of the bar of res judicata. This Court was not prepared to hold that this view is erroneous and, therefore, the Tribunal was justified in dealing with the merits of the dispute. 6. In the present case, we have been taken through in detail the award made in the case of Balanarsimha and Mallesh and we find that the Tribunal has not focussed its attention to the first of the question whether there has been any contravention of Section 33 of the Act to enable it to proceed further to decide whether the employee is entitled to any relief under the Act or not. To merely consider the question that the employee is not entitled to the relief without examining firstly the question whether the act complained of is in contravention of Section 33 of the Act will be one made as observed by this Court in Orissa Cement Ltd. case [ (1960) 2 LLJ 91 (SC)] as obiter or as one made without fulfilling the condition precedent to exercise of power under Section 33-A of the Act and, therefore, (sic) could not proceed to give a finding as to whether the termination of service of the workman is justified or not. Further, in the case of Sri Dorairaj Spintex vs. R. Chittibabu & Others reported in (2021) 12 SCC 38 (paras 8-12) the Hon’ble Court has reiterated the scope of Section 33 of the Industrial Disputes Act, 1947 in the same line. 22. Having regards to the above, the Award clearly appears to be erroneous. However, the Petitioner- Management (FCI) is a government owned entity. It is expected to be a model employer. Even if the Tribunal has failed to examine the jurisdictional issue of maintainability and has proceeded on merits, there is no denial regarding the long tenure of service of these 24 Respondents. These Respondents are on the verge of retirement. The direction for reinstatement in service had also attained finality. The show cause notice regarding retrenchment by the management was therefore, not justified. The employer cannot reap unfair advantage only on technical grounds. The Respondents have already worked and for all practical purposes have been treated as permanent employees of the Food Corporation of India. The testimony of the sole workmen witness is also unchallenged as this witness was not even cross-examined by the Management. The disputes between the Management and these workers can be traced back to 1985. Even though these Respondents were not formally regularized in service they have worked on the post of watchman by orders issued by the officers of Food Corporation of India. 23. Thus, it would be iniquitous to relegate the parties to the Tribunal for a fresh round of litigation. Even assuming that the Tribunal did not have jurisdiction under Section 33 A of The Industrial Disputes Act, 1947, the factual position is that even the Management has not yet taken any decision to the prejudice of these 24 Respondent workmen by reducing salary. Even assuming that the Tribunal did not have jurisdiction under Section 33 A of The Industrial Disputes Act, 1947, the factual position is that even the Management has not yet taken any decision to the prejudice of these 24 Respondent workmen by reducing salary. If the position existing on the date of filing of complaint is restored, the Respondent workmen would have to respond to the show cause notice issued to them on 7.05.2014. If the Management removes them they will have to challenge this decision afresh leading to a spiral of unending litigation. The Management cannot terminate their service after more than two decades. Even otherwise, the order of reinstatement in service was confirmed by the Apex Court and cannot be circumvented by the Petitioner by issuing a new notice for retrenchment. This will create unnecessary legal and factual complications and will lead to perpetual uncertainty. 24. The Hon’ble Supreme Court has also recently decided in the case of Shripal & Anr. Vs. Municipal Corporation, Ghaziabad, 2025 SCC Online SC 221 that workers cannot be relegated to a state of perpetual uncertainty. Paragraph no. 17 throws light on this aspect and reads as follows:- 17. In light of these considerations, the Employer's discontinuation of the Appellant Workmen stands in violation of the most basic labour law principles. Once it is established that their services were terminated without adhering to Sections 6E and 6N of the U.P. Industrial Disputes Act, 1947, and that they were engaged in essential, perennial duties, these workers cannot be relegated to perpetual uncertainty. While concerns of municipal budget and compliance with recruitment rules merit consideration, such concerns do not absolve the Employer of statutory obligations or negate equitable entitlements. Indeed, bureaucratic limitations cannot trump the legitimate rights of workmen who have served continuously in de facto regular roles for an extended period. 25. The Petitioner may have mistakenly given all benefits attached to the post of watchman to these 24 workmen. At this stage, it is too late to claim any recovery from such workmen. It is also a legally settled proposition that recovery from the salary of employees is impermissible when any excess payment is made without concealment or fraud. 25. The Petitioner may have mistakenly given all benefits attached to the post of watchman to these 24 workmen. At this stage, it is too late to claim any recovery from such workmen. It is also a legally settled proposition that recovery from the salary of employees is impermissible when any excess payment is made without concealment or fraud. In the prevailing facts and circumstances, and applying the law discussed above, the only recourse available is to set aside the order/award dated 14.01.2016 passed in Complaint Case No. 6/2014 as there was no infringement of Section 33 of the Industrial Disputes Act, 1947. 26. The operative portion of the Award impugned in this case which sets aside the termination; when there was no order of termination, the Petitioner had only issued a notice, and as such, the Award is clearly perverse, and accordingly, the same is quashed and set aside. However, no recovery of salary or withdrawal of benefits would be justified at this stage when most of these Respondents have already worked for several decades on the post of watchman in Food Corporation of India. Ordered accordingly. 27. As a result, the instant writ petition stands disposed of in the manner indicated hereinabove. Pending I.As, if any, also stands closed.