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  • Writer's pictureRFMLR RGNUL


This post is authored by Vidushi Gupta, a fourth-year B.A. LL.B. (Hons.) student at National Law School of India University, Bangalore.

This is the second part of the two-part blog on the scope of judicial enquiry under Section 33(2)(b) of the Industrial Disputes Act. This part discusses the need for judicial reform and concludes the article. The first part can be accessed here.


It has been held that the worker is not prejudiced as the grant of approval under Section 33(2)(b) is not final; it does not give permanent validity to the employer’s action. When approval is granted or refused, one alternative for the aggrieved workman is to approach the government for a reference under Section 10 of the IDA. This has to be read with Section 11A, which confers appellate jurisdiction on the Court/Tribunals while dealing with industrial disputes relating to discharge/dismissal. Even when there is a proper and valid domestic enquiry, they are empowered to set aside the discharge/dismissal and direct reinstatement, alter/reduce punishment, or give other relief to the workman.

However, the government may be reluctant to make a reference as the essential matters of the case may have already been “seen and determined” by the tribunal, or the notice may be frivolously or vexatiously given etc. The power to refer the dispute is an administrative power, based on subjective satisfaction. The Courts cannot generally interfere in the same.

An order of reference can be made under Section 10(1), during the pendency of an application for approval under Section 33(2)(b), since the approval merely ratifies the action. However, this makes Section 33 redundant. The government may also refuse reference due to the pending proceedings.

This problem of discretion in reference has been sought to be addressed through Section 2A, which allows a worker to have his dispute adjudicated directly, without a government reference. But, to avail it, the worker is required to make an application to the Conciliation Officer and 45 days should have passed since the application.

An aggrieved workman also has a right under Section 33A, to file complaint after approval has been granted or where the employer fails to make an application for approval etc. Section 33A is available only to workers and is intended to save time and trouble and provide speedy redress, without recourse to Section 10. The legislature has conferred appellate jurisdiction on the tribunals while adjudicating upon the complaints under Section 33A, coextensive with the jurisdiction under Section 10 read with Section 11A. They can reappraise evidence adduced in domestic enquiry, decide the case on merits, and grant appropriate relief. However, if the complaint is made to a conciliatory authority, it can only take into account such complaint in the course of mediating the dispute.

Another problem is that if evidence is not permitted to be adduced before the authorities under Section 33(2)(b), it will be debarred in further proceedings too when the enquiry is held to be not defective. Thus, the worker would be estopped from presenting his case, even when being considered on merits under Sections 2A, 10 or 33A of the IDA.

Lastly, the employer may also be liable to face punishment under Section 31(1) of the IDA. However, this provision only punishes the offender and does not provide any remedy to an aggrieved employee.

Incidentally, the Court in the present case only recognises the remedy under Section 10 and completely ignores the other remedies available to employees. Moreover, the fact that the scope of jurisdiction and adjudication under Sections 2A, 10/11A and 33A is similar, acts a counter to the common argument that the rationale behind the limited scope of enquiry under Section 33 is to distinguish it from other statutory remedies and provisions.


Although it appears that several remedies are available to workers aggrieved under Section 33(2)(b), but the current scheme of things still favours employers and does not provide adequate protection to workers. This is because the existing remedies create a situation where the lowest level at which judicial scrutiny takes places (at the time of approval) involves very little scope for judicial inquiry due to the prima facie standard being employed. This means that the burden on employers is very low in most cases, and the worker fails to adequately put forward their case. Due to the highly circumscribed role of the authorities, they become helpless in granting appropriate relief to the workers, as also happened in the present case. The worker possessed appropriate evidence in his favour, but failed to get justice.

Though a worker may appear free to seek remedy under other provisions, it is he who would have to bear the brunt of approaching the authorities, while the employer would be at peace after conveniently seeking approval on a mere prima facie standard. Further, precluding the authorities to decide the matter on merits at the time of approval itself leads to prolonged litigation between the parties, involving unnecessary and avoidable delay. This is also evident in the present case, where several rounds of litigation happened over a period of 10 years, and the worker got superannuated long before the resolution of the matter.

Even the widened scope under Section 33A benefits employers and creates room for abuse, when the employer does not apply for approval under Section 33(2)(b), because the worker may get dismissed and have to remain out of the job. It is the worker who will have to file a complaint under Section 33A, to remedy the situation. This is despite the fact that as per a SC decision, if there is omission to seek approval, such an order cannot remain operative until it is set aside under Section 33A. Thus, the employer gets to benefit from its non-compliance with the law.

The employer-employee relationship is inherently unequal and the IDA is a welfare legislation, enacted to protect the workman, who is usually in a disadvantageous situation. An employee, having lost his source of livelihood, may not have the inclination or resources for litigation, whereas employers have considerable resources to pursue litigation for a favourable outcome. Even in the present case, the worker argued his case himself, but KSRTC appeared through an advocate. Further, it may be difficult for the worker to procure adequate evidence at the time of domestic enquiry and may be able access evidence at a later stage, due to resource constraints and power dynamics. Thus, the protection envisaged under Section 33(2)(b) stands defeated to a large extent.

Hence, the legislative scheme should be amended to provide workers appropriate redressal at the time of approval. A wider jurisdiction should be conferred on the authorities under Section 33. They should be empowered to go into the merits of a case, take fresh evidence and alter the punishment. This would help to avoid expensive litigation and render speedy and complete justice to the parties.

It is unfortunate that Sections 90 and 91 of the Industrial Relations Code, 2020 are exactly identical to Sections 33 and 33A of the IDA, and that they do not even find a mention in the Report of the Standing Committee on Labour. This indicates that the Parliament has entirely failed to recognise the problems discussed in this paper and, thus, the IRC does not do anything to remedy the situation.


The judgement has highlighted the lacunae in the larger legislative scheme, in relation to the scope of enquiry for approval under Section 33(2)(b). Case laws highlight the constantly changing judicial interpretation and outcomes. The prima facie standard employed by the authorities under Section 33 is extremely low and unnecessarily restrictive, thereby preventing courts from protecting workmen. The problem is compounded due to the gaps in the statute and the lack of appropriate statutory remedies for aggrieved workers. The SC in the present case missed the opportunity of taking a worker-centric view on the issue. Thus, the appropriate solution is to bring about an amendment and alter the legislative scheme, thereby creating fresh jurisprudence, in the interest of workers.


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