Managerial Prer Sec 33

MANAGRIAL PREROGATIVE Sec 33
The relationship of an employer and employee is inherently unequal and the Industrial Disputes
Act, 1947 (the "Act") was enacted keeping this aspect in mind. The Act is a comprehensive
legislation which seeks to protect the workman, who is usually in a disadvantageous situation, from
unjust and illegal actions of the employer.
Section 33
Section 33 of the Industrial Disputes Act, 1947 (the "Act") imposes prohibition on the employer
from altering the terms of service of its workmen to their prejudice or to terminate their services
during the pendency of any proceedings, including conciliation proceedings, in respect of an
industrial dispute.
The rationale behind Section 33 is simple. No employer takes kindly to a workman questioning an
action taken against him by the management, particularly by raising an industrial dispute. It is usual
for the employer to consider such a workman as a trouble maker who the employer should rid itself
from. Thus, Section 33 seeks to protect a workman from victimisation by the employer on account
of him having raised an industrial dispute.
Essential Requirements/Ingredients of Section 33

For application of Sec. 33(1)(a) and (b), the following conditions must be fulfilled:
(i) Some proceeding under the Act must be pending before any one of the authorities mentioned
therein.
(ii) The pending proceedings must be in respect of an industrial dispute
(iii) The alteration in the conditions of service must be prejudicial to the workmen concerned (if
advantageous, no question arises).
(iv) The conditions of service (intended to be altered) should have been applicable to the workmen
immediately before the commencement of such proceeding.
(v) There is a discharge, dismissal for misconduct.
(vi) The alteration or misconduct is connected with the pending dispute.
(vii) The workman claiming protection under this section should not only be a workman within the
meaning of Sec.2(s), but should be a workman connected with the pending dispute.
(viii) The action should've been taken without the express permission in writing of the authority
before which the proceeding is pending
Section 33A
This section is designed to provide an instant remedy to a workman aggrieved by the contravention
of Sec.33. In other words, where an employer has contravened the provisions of Sec.33, the
aggrieved workman has been given the option to make a complaint in writing, to the authority
before which an industrial dispute is pending, with which the aggrieved workman is concerned.
Essential Requirements/Ingredients of Section 33A

⁃ Firstly, that there should have been a contravention by the management, of the provisions of
Sec.33 of the Act and
⁃ Secondly, that the contravention should have been during the pendency of the proceedings
before the labor court, tribunal or national tribunal, as the case may be.
⁃ Thirdly, that the complainant should have been aggrieved by the contravention and
⁃ Lastly, that the application should have been made to the labor court, tribunal or national
tribunal in which the original proceedings are pending
The Present Position thus, as it stands now:

(1) The employer is free to suspend his workmen pending his application for approval under Sec.
33.
(2) The employer should pay subsistence allowance as prescribed under the Standing Orders or if
no Standing Orders then as directed by the Authority before which the for permission is pending
(3) If employer fails to pay subsistence allowance, his application liable to be rejected on this
ground alone.
(4) But, the employer can make a fresh application for permission for approval after he has
discharged his liability in respect of subsistence allowance (by paying or offering to pay to the
workman within reasonable time to be fixed by the authority the arrears of allowance).
The right of an employer to suspend an employee after holding proper enquiry pending proceedings
under Sec. 33, without taking permission of the authority concerned has been the subject matter of
several cases.
#CASE LAW: HOTEL IMPERIAL v HOTEL WORKERS UNION (AIR 1959 SC 1342)
Facts and Issue- The management of Hotel came to the conclusion that 22 workmen were guilty of
misconduct. The management informed these workmen that it had decided to dismiss them subject
to obtaining of permission under Sec. 33. Ultimately management informed them of its decision to
dismiss them and to their suspension pending permission to dismiss by the authority concerned
under Sec. 33.
The workmen challenged under Sec. 33-A, the management's right to suspend without pay for an
indefinite period.
ISSUE: 1. What are the employer's power regarding the employee's suspension?
2. Whether any wages are payable at all to workmen who were suspended pending permission
under Sec. 33 for their dismissal?
Observations and Decision
On Issue No. 1
The employer's power regarding the employee's suspension, observed that section 33 of the said Act
puts a limitation on the power of the employer and empowers the employee.
For Suspension of An Employee

It requires the employer to take permission of the industrial Tribunal before terminating the
employee on misconduct or any other similar ground.
⁃ Section 33 provides the power to the industrial Tribunal to look for reasons behind the
termination and give an order as per the law.
⁃ The idea is to protect the employee from the unjust and unfair termination by the employer in
their master-servant relationship.
 
 

 
 

On Issue No. 2
Under the ordinary law of master and servant, a master can suspend a servant only if he has this
power under the contract of employment or in the statute governing the contract. It is not an
implied term.
⁃ Therefore, where an employer is not empowered to suspend on employee he will have to pay
wages during the suspension period.
Where an employer is so empowered, the suspension has the effect of temporarily suspending the
relation of employer and employee with the consequences that the employee is not bound to render
services and the employer is not bound to pay.
Thus, If the tribunal grants permission to the employer under Sec. 33, the suspended contract
would come to an end and there will be no further obligation to pay any wages after the date
of suspension.
The law relating to "payment of subsistence allowance during the period of suspension" has
undergone substantial change in view of later decisions of the Supreme Court.
#CASE LAW: In Fakirbhai Fulbhai Solanki v The Presiding (1986)

The court reconsidered the Hotel Imperial case and laid down that just as employer's right to
suspend his employee can be treated as an implied condition, the suspension allowance to workmen
should also be treated s an implied condition of contract of employment.
1. The Hon'ble Supreme Court concluded that such suspension bars the workmen's service from
the management, but it does not put an end to the allowances paid to him.
2. The question of allowances and confirmation of termination is subject to the observations
made by the Tribunal.
3. It is observed that the position of the workmen is weaker than the management, and that shall
not affect the delivery of justice.
4. It was further held that the denial of payment during the suspension is a violation of principles
of natural justice and consequently vitiates the proceedings before the Tribunal.
5. In this case, the Court strictly observed that the suspension before the Tribunal's decision
would only mean suspension from work liabilities. That shall not render the management
liable to pay the employee during the pendency of the matter or before the adjudication by the
concerned authority.
However, the workman against whom the application is made should be paid some amount by way
of subsistence allowance. This will enable him to maintain himself and his family and also to
the expenses of litigation before the Tribunal.
CASE LAW: In Ram Lakhan v The Presiding Officer, (2000)

The Apex Court reconsidered the case law on the point. It observed that there is no conflict of
opinion between the cases and held:
While right to place an employee under suspension pending disposal of the application under
Sec. 33(1) is to be conceded to the management on the basis of the decision in Hotel Imperial
case, the right of the employee to receive subsistence allowance during the suspension period
has to be conceded to the employee on the basis of the decision in Fakirbhai case.
While deciding the question of wages of the employee during the suspension period
⁃ If the Tribunal grants permission, the suspended contract will come to an end. There will be
no further obligation to pay any wages after the date of suspension.

⁃ If, on the other hand, the permission is refused, the suspension would be wrong, and the
workman would be entitled to all his wages from the date of suspension.
While deciding the question of Suspension Allowance of the employee during the suspension
period
A suspension order affects a workman injuriously. 'Subsistence' means 'means of supporting life,
especially a minimum livelihood'. It is in this light that the right to receive reduced salary
(subsistence allowance) for the suspension period has to be read along with the right of the
management to place the employee under suspension.
Thus, the right of the management to suspend and the right of the employee to receive
subsistence allowance are intertwined and both must survive together.
DECISION OF THE CASE IN QUESTION (FOR REFERENCE)

MRS. POMPY It is observed that there is no conflict of opinion between the decision rendered in
the Hotel Imperial case and the Fakiribhai case, while the right to place an employee under
suspension pending disposal of the application under section 33(1) is to be conceded to the
management based on the decision in the Hotel Imperial case, and the right of the employee to
subsistence allowance during the suspension period has to be conceded to the employee based on
the decision in Fakhiribhai case.
The right of the management to suspend and the right of the employee to receive subsistence
allowance are inter related, and both must survive together. As per the facts of Mrs. Pompy case, the
Management has the right to suspend the employee, but Mrs. Pompy is entitled to the subsistence
allowance during her due course of employment. As per the Hotel Imperial case, the Management
can suspend Mrs. Pompy from work based on their domestic inquiry and their contract. Similarly,
the extension for more periods of employment by way of contract cannot be enforced on the
management. The decision cannot be affected by the said provision. The right to suspend and set the
employee free from the service is in the power of management. As per the case of Fakiribhai
Fulabhai Solanki, Mrs. Pompy can claim her allowances during her employment and pendency of
the dispute before the Tribunal. It is a right given to her under the statutory provisions and by
judicial decisions.

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MANAGRIAL PREROGATIVE Sec 33

Essential Requirements/Ingredients of Section 33

Essential Requirements/Ingredients of Section 33A

The Present Position thus, as it stands now:

Observations and Decision

For Suspension of An Employee

#CASE LAW: In Fakirbhai Fulbhai Solanki v The Presiding (1986)

CASE LAW: In Ram Lakhan v The Presiding Officer, (2000)

DECISION OF THE CASE IN QUESTION (FOR REFERENCE)

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