CHANGE IN CONDITIONS OF SERVICE :

(1) Change in service conditions when no proceedings are pending before Labour Court/Tribunal etc.

Notice of change: Section 9A of the Industrial Disputes Act, 1947 lays down that any employer who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in Schedule IV (given in the end of this study) is required to follow the procedure laid down in Section 9A of the Act.

According to Section 9A, the workmen likely to be affected by the proposed changes are to be given a notice in the prescribed manner. No change can be made within 21 days of giving such notice. However, no notice is required for effecting any such change when it is in pursuance of any settlement or award. These provisions are wholly inapplicable to any alleged right to work relief for office bearers of trade unions. No such right is recognised under provisions of the Act (LLJ II 1998 Mad. 26).

According to Section 9B, where the appropriate Government is of opinion that the application of the provisions of Section 9A to any class of industrial establishments or to any class of workmen employed in any industrial establishment affect the employers in relation thereto so prejudicially that such application may cause serious repercussion on the industry concerned and that public interest so requires, the appropriate Government may, by notification in the Official Gazette, direct that the provisions of the said Section shall not apply or shall apply, subject to such conditions as may be specified in the notification, to that class of industrial establishments or to that class of the workmen employed in any industrial establishment.

(2) Change in conditions of service during pendency of proceedings

Section 33 prohibits the employer from bringing any change, to the prejudice of any workman, in the conditions of service in respect of any matter connected with the dispute which is pending before a Conciliation Officer, or Conciliation Board or an Arbitrator or Labour Court or Tribunal or National Tribunal. The purpose of such a prohibition is to protect the workmen concerned, during the pendency of proceedings against employers harassment and victimisation on account of their having raised the industrial dispute of their continuing the pending proceedings. This Section also seeks to maintain status quo by prescribing management conduct which may give rise to fresh dispute which further exacerbate the already strained relations between the employer and the workmen (Automobile Products of India Ltd. v. Rukmaji Bala AIR 1955 SC 258). Thus ordinary right of the employer to alter the terms of his employees service to their prejudice or to terminate their services under the general law governing the contract of employment, has been banned subject to certain conditions. However, under Section 3, employer is free of deal with employees when the action against the concerned workman is not punitive or mala fide or does not amount to victimisation or unfair labour practice (Air India Corporation v. A. Rebello, 1972-I L.L.J. 501 S.C.). A detailed study of Section 33 will further clarify that aspect.

According to Section 33(1), during the pendency of any proceedings before Conciliation Officer or a Board, or an Arbitrator, or a Labour Court or Tribunal or National Tribunal, in respect of an industrial dispute, the employer is prohibited from taking following actions against the workmen, except with the express permission in writing of the authority before which the proceedings are pending.

(a) to alter in regard to any matter connected with the dispute to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings.

(b) to discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute for any misconduct connected with the dispute”.

From the above provisions, it is clear that prohibition on the employer is not absolute. He can make changes in the conditions of service provided he has obtained, before effecting any change, permission in writing of the authority before which the proceedings are pending. Further, alterations in the conditions of services should be to the prejudice of a workman. Transfer of a workman from one department is an ordinary incidence of service and therefore, does not amount to alteration or the prejudice of a workman, even when transfer amounts to reduction in earning due to reduced over-time wages.

In the case of Bhavanagar Municipality v. Alibhai Karimbhai, AIR 1977 S.C. 1229, the Supreme Court laid down the following essential features of Section 33(1)(a):

(i) the proceedings in respect of industrial dispute should be pending before the Tribunal;

(ii) conditions of service immediately before the commencement of Tribunal proceedings should have been altered;

(iii) alteration is in regard to a matter connected with the pending industrial dispute;

(iv) workmen whose conditions of service have been altered are concerned in the industrial dispute;

(v) alteration is to the prejudice of the workmen.

Change in condition of service – When permissible

Section 33(1) prohibits the employer from changing, during the pendency of proceedings, the conditions of service relating to matter connected with the dispute. Employers were prevented from taking action even in obvious cases of misconduct and indiscipline unconnected with the dispute. To overcome this difficulty, Section 33(2) makes the following provisions:

(i) During the pendency of any such proceedings in respect of an industrial dispute, the employer is permitted to take following actions, in accordance with the standing orders applicable to workmen concerned in such disputes 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) to 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 proceedings.

(b) to discharge or punish, whether by dismissal or otherwise, that workman for any misconduct not connected with the dispute.

(ii) According to proviso to Section 33(2), 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 proceedings are pending for approval of the action taken by the employer.

According to Section 33(5), where an employer makes an application to a Conciliation Officer, Board, an Arbitrator, a Labour Court, Tribunal or National Tribunal under the above proviso for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass within a period of three months from the date of receipt of such application, such order in relation thereto as it deems fit (unless extended on reasonable grounds).

Thus, the stringency of the previous provision is ought to be softened by permitting the employer to take action against the workmen in accordance with the standing orders applicable to them during the pendency of proceedings in regard to any matter unconnected with the dispute by the present Section 33(2).

In cases falling under sub-section (2), the employer is required to satisfy the specified conditions, but he need not necessarily obtain the previous consent in writing before he takes any action. The ban imposed by Section 33(2) is not as rigid or rigorous as that imposed by Section 3(1). The jurisdiction to give or withhold permission is prima facie wider than the jurisdiction to give or withhold approval. In dealing with cases falling under Section 32(2) the industrial authority will be entitled to enquire whether the proposed action is in accordance with the standing orders, whether the employer concerned has been paid wages for one month, and whether an application has been made for approval as prescribed by the said sub-section. It is obvious that in case of alteration of conditions of service falling under Section 33(2)(b), no such approval is required and the right of the employer remains unaffected by any ban. Therefore, putting in negatively, the jurisdiction of the appropriate industrial authority in holding enquiry under Section 33(2)(b) cannot be wider and is, if at all, more limited, than that permitted under Section 33(1), and in exercising its powers under Section 33(2) the appropriate authority must bear in mind the departure deliberately made by the legislature in separating the two classes falling under the two sub-sections, and in providing for express permission in one case and only approval in the other”. The crucial date for seeking permission of authorities to dismiss an employee is the date of dismissal and not the date of initial action (LAB IC 1998 Mad. 3422).

(3) Protected workmen and change in conditions of service, etc.

A protected workman in relation to an establishment, means a workman who, being a member of the executive or other officer bearer of a registered Trade Union connected with the establishment, is recognised as such in accordance with rules made in this behalf.

According to Section 33(3), notwithstanding anything contained in Section 33(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 condition 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.

In every establishment the number of workmen to be recognised as protected workmen for the purposes of above-stated provisions, 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 recognised as protected workmen [Section 33(4)]. Bombay High Court in Blue Star Ltd. v. Workmen, held that a Trade Union-worker cannot enjoy the luxury of getting salary, for not doing the assigned task in the company and spending away his time in Trade Union activities exclusively. The Trade Union office bearers cannot claim any special privilege over and above ordinary workers. [Section 33(3) and (4)]

Principles governing domestic enquiry  

Some important principles governing a domestic enquiry are summarised below:

(1) The enquiry should be conducted by an unbiased person, i.e., who is neither against nor in favour of a particular party. The person should not be an interested party. He should not import his own knowledge (Associated Cement Co. Ltd. v. Their Workmen). If he has himself witnessed anything, the enquiry should be held by somebody else. Thus, it should be ensured that justice is not only rendered but appear to be rendered. However, a person holding enquiry will not be held as baised merely on the ground that he receives remuneration from the employer.

(2) The enquiry officer should conduct the enquiry honestly. It should be seen that enquiry is not mere empty formalities (Kharah & Co. v. Its Workmen, AIR 1964 SC 719).

(3) The employee should be given a fair opportunity to defend himself. He should be clearly informed of thecharges levelled against him. Evidence must be examined in the presence of the workman, and he should be given opportunity to cross-examine the witnesses (Meenaglass Tea Estate v. Its Workmen, AIR 1963 SC 1719). However, the enquiry officer can proceed with the enquiry if the worker refuses to participate without reasons.

(4) If any criminal proceedings, e.g., the theft, etc., are pending against any workman, the enquiry officer need not wait for the completion of those proceedings. However, he may wait for the out-come of such proceedings if the case is of grave or serious nature (D.C.M. v. Kushal Bhum, AIR 1960 SC 806).

(5) Holding out of preliminary enquiry is not mandatory or necessary. But it is desirable to find out prima facie reasons for the domestic enquiry.

(6) A proper procedure should be followed in conducting enquiry. If procedure is prescribed by Standing Orders, it must be followed. Normally, a worker should be informed by a notice so that he can prepare his defence. The proceedings may be adjourned at the discretion of the enquiry officer. The pleadings and other rules should not be rigid and technical. Strict rules of the Evidence Act need not be followed.

(7) The enquiry officer should clearly and precisely record his conclusions giving briefly reasons for reaching the said conclusion.

(4) Recovery of money due from an employer

Following provisions have been made in this respect:

(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A or Chapter V-B, the workman himself or any other person authorised by him in writing in this behalf, or, in the case of 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 money due to him and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the same manner as an arrear of land revenue.

(2) Every such application shall be made within one year from the date on which the money become due to the workman from the employer. However, 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. However stale claim cannot be entertained unless delay is satisfactorily explained.

(3) 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 within three months unless extended by the Presiding Officer of a Labour Court.

(4) 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.

(5) 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 point (1) above.

(6) 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. (Section 33-C)