10.It is not disputed that the claim of the petitioner for difference in
Dearness Allowance for the period 11.11.2011 is based on the Award of the
Majithia Wage Board, which was approved by the Government of India on
11.11.2011 and confirmed by the Hon’ble Supreme Court in
W.P.(Civil)No.246 of 2011 on 07.02.2014. The petitioner’s raised a dispute claiming difference in Dearness allowance and the same was referred to the Labour Court by the Government of Tamil Nadu in G.O.(ID) 441 dated 21.07.2016 under Section 17 (2) of the Working Journalist and other
Newspaper Employees (conditions of service) and Miscellaneous Provisions Act 1955. During the pendency of the said reference in the present 205/2011 the petitioner’s were retrenched and hence the complaint under Section 33(1) (a) of the I.D. Act was filed. Let me now refer to the provisions of the Working Journalist Act as well as the ID Act which are relevant for the purpose of this case. Section 2(K) of the ID Act reads as follows:
“2(k)”industrial dispute” means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or
with the conditions of labour, of any person; “
Section 17(2) of the Working Journalist Act which reads as follows:
“17(2) If any question arises as to the amount due under this Act to a newspaper employee from his employer, the State Government may, on its own motion or upon application made to it, refer the question to any Labour Court constituted by it under the Industrial Disputes Act, 1947 (14 of 1947), or under any corresponding law relating to investigation and settlement of industrial disputes in force in the State and the said Act or law shall have effect in relation to the Labour Court as if the question so referred were a matter referred to the Labour Court for adjudication under that Act or law.”
11.The reading of Section 17(2), particularly the phrase “as if the question so referred were a matter referred to the Labour Court for adjudication under that Act or law”, in my view cannot convert the question into a dispute as defined and understood under Section 2(K) of the I.D. Act. The words, as if the question so referred were a matter referred to the Labour Court for adjudication under the act or law” would only mean that while answering the question the Labour Court would adjudicate it in the same manner as it would adjudicate a reference under the I.D. Act. To say that the reference of the question to the Labour Court changes the character of the reference into an industrial dispute goes against the letter and spirit of the said provision. The legislature has used the term “refer the question”. The legislature has consciously avoided the term ‘dispute’, because the legislature was aware that the term ‘dispute’ has its own connotations under the I.D Act. From a reading of the definition of Industrial Dispute under Section 2(k), it is clear that the question that is referred under Section 17(2) cannot be construed as an industrial dispute. An industrial dispute referred to therein is in relation to non employment, the terms of employment or conditions of labour. Whereas the question under Section 17(2) relates to computation of claim and hence, it would not fall under the definition of industrial dispute under the ID Act.
12.As rightly contended by the learned counsel for the respondent Section 17 of the Working Journalist Act is akin to Section 33(C)(2) of the
I.D Act. It is well settled by catena of Judgments of this Court as well as Hon’ble Supreme Court that the jurisdiction exercised by the Labour Court under Section 33(C)(2) is that of an Executing Court. In the present case, it is seen that the recommendations of the Majithia Wage Board were accepted by the Government of India on 11.11.2011 and the same was challenged before the Hon’ble Supreme Court, which confirmed the recommendations of the Majithia Wage Board, but with modification that the same would be effective from 11.11.2011 only.
13.It is the respondents case that the respondent had paid the dues to the petitioner and other employees as per the order of the Hon’ble Supreme Court in 2014-2015 itself, but the petitioner claimed higher
Dearness Allowance and therefore petitioned the Government under the
Working Journalist Act. The Government in terms of Section 17 of the
Working Journalist Act referred the claim petition to the Principal Labour Court. The aforesaid facts clearly establish that the question referred to was a claim relating to the computation of difference in the Dearness Allowance paid by the respondent to the petitioner. In my view, the question referred to the Labour Court on the basis of the Majithia Wage Board recommendations relates to computation of Dearness Allowance under Section 17(2) of the Working Journalist Act and hence not an industrial dispute as defined in the Industrial Disputes Act. I am fortified in my view by the Judgment of the Hon’ble Division Bench of the Gujarat
High Court in Keshavlal M.Rao Vs. State of Gujarat and Others reported in
1993 (1) LLN 373. The Hon’ble Chief Justice, S.Nainar Sundaram, J. while considering similar issue held as follows:
“Section 17 to a very great extent by verbalism and by implications stands in pari materia with Section 33C of the Industrial Disputes Act, 1947. Section 33C(1) of the Industrial
Disputes Act, 1947 is comparable with Section 17(1) of the Act; and Section 33C(2) of the Industrial Disputes Act, 1947 is comparable with Section 17(2) of the Act. The scope of Section 33C of the Industrial Disputes Act, 1947 has come up for consideration by pronouncements not only at the level of the High Courts but also at the level of the Apex Court of the land. They are incisive and they have, without any ambiguity characterised the machinery under Section 33C(2) of the Industrial Disputes Act, 1947 as one relatable to execution stage and not at the adjudicatory level over the right to relief claimed by applicant and denied by the opponent. They have held that investigation into and determination of any dispute regarding the applicant’s right to relief and the corresponding liability of the opponent will be outside the scope of the said provision. The set of expression found in Section 33C(2) of the Industrial Disputes Act, 1947 is “If any question arises as to the amount of money due”, from the employer to the workman. As already noted, the set of expressions used in Section 17(2) of the Act is “If any question arises as to the amount due under this Act to a newspaper employee from his employer”. Under Section 33C(2) of the Industrial Disputes Act, 1947, the specified Labour Court decides that question. Under Section 17(2) of the Act, the question gets referred to the Labour Court for its decision over it. The similar features between the two provisions are very portent and on the basic factor that the provisions are in pari materia, there is every warrant for applying the ratio of the judicial pronouncements delineating the scope of Section 33C(2) of the Industrial Disputes Act, 1947 to delineate the scope of Section 17(2) of the Act.”
14.It is trite that Section 33 (1) (a) is attracted only if an industrial dispute is pending. Section 33 of the I.D. Act reads as follows:
[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.”
15.From a reading of Section 33 it is clear that the foundation of Section 33 (1) (a) is the pendency of a dispute under Section 33. On the facts of the case, I have held that what was referred to the Labour Court was an adjudication of a computation petition, hence in my view in the absence of violation of Section 33, the complaint under Section 33 (1) (a) is not maintainable.
16.Here the judgment of the Hon’ble Surpreme Court in the case of Blue Star Employees’ Union Vs. Ex Off. Principal Secy. to Govt. and another reported in 2000 (8) SCC 94 is relevant and it reads as follows:
“4. A complaint can be made to the Tribunal under Section 33A 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.”
17.In the above judgment, the Hon’ble Supreme Court has further held that, if the issue of violation of Section 33 is answered against the employee, nothing further survives for consideration or action by the Tribunal. Therefore, the question of examining the validity of retrenchment does not arise. In any event the said issue is examined for the sake of completion. The Labour Court in my view rightly relied on the Judgments of the Hon’ble Supreme Court in the cases of The Bhavnagar Municipality vs. Alibhai Karimbhai and others and Silver Cloud Estate Vs. Labour Court and another reported in 1960 SCC OnLine Mad 356, for its conclusion that retrenchment does not amount to alteration of conditions of service.
18.In the case of The Bhavnagar Municipality vs. Alibhai Karimbhai and others it was as follows:
“13. Retrenchment may not, ordinarily, under all
circumstances, amount to alteration of the conditions of service. For instance, when a wage dispute is pending before a Tribunal and on account of the abolition of a particular department the workers therein have to be retrenched by the employer, such a retrenchment cannot amount to alteration of the conditions of service.”
19.So also in the case of Silver Cloud Estate Vs. Labour Court and another reported in 1960 SCC OnLine Mad 356, it was held that Section 33(2)(a) refers to alteration of conditions of service, retrenchment cannot ordinarily amount to alteration in the conditions of service, but rather termination of the same.
20.To sum up in the present case, it has already been held that there is no dispute pending adjudication, but only a question referred under Section 17(2) of the Working Journalist Act and it is also been seen that the retrenchment does not amount to alteration of service conditions. In both the cases, it is held that Section 33(1)(a) is not attracted. Admittedly no other provisions of Section 33 are shown to be attracted in the present case. Therefore in the absence of contravention of Section 33, the compliant under Section 33(1)(a) necessarily fails. The Award of the Labour Court that there was no violation of Section 33(1)(a) is confirmed.
21.The petitioner is at liberty to seek for reference under Section 10(2)(a) of the Act, and as a fact it is seen that conciliation officer has already submitted its failure report on 17.12.2021.
22.Writ petition is accordingly disposed of. No costs.
15.04.2024
(2/2)
dsn/ns/ah Index:Yes/No
Speaking Order:Yes/No
Neutral Citation:Yes/No 
N.MALA,J.
dsn
To
The Principal Labour Court, Chennai.
PRE-DELIVERY ORDER IN
W.P.No.6343 of 2022
ORDER DELIVERED ON