1. This is an appeal under Clause 10 of the Letters Patent against the order of Dua, J., of 17 February 1959, dismissing a petition filed under Article 226 of the Constitution by the appellant, the Karnal Kaithal Co-operative Transport Society, Ltd.
2. The relevant facts are as follows:
By a notification dated 23 October 1956 the Punjab Government referred a dispute between the petitioner society and its workmen to Mr. Avtar Narain Gujral as industrial tribunal sitting at Jullundur. The question referred was a general one relating to the workmen as a whole regarding the question whether the management should be required to give any earned leave to the workmen, and if so, how much. While this dispute was pending before the tribunal, the society retrenched two of its workmen who were styled as checking inspectors on the ground that their posts were being abolished as superfluous and an unnecessary drain on the funds of the society. They were apparently given one month's notice and compensation as provided in Section 25FF of the Industrial Disputes Act. One of the workmen retrenched named Amar Nath was a member of the workers' union and his cause was espoused by the union with the result that on 30 November 1956 before his one month's notice had actually expired, an application was filed by Amar Nath before the tribunal under Section 33A of the Industrial Disputes Act. This was duly dealt with by the tribunal under the provisions of Section 33A and it was held that Amar Nath had been wrongly retrenched and that the society had failed to make out any case for retrenchment and had not shown that the principle of 'last come, first go' had been observed. It was accordingly ordered in the award dated 14 May 1967, that he should be reinstated without any break in the continuity of his service. It is this order which is challenged in the present appeal.
3. Although other matters had been raised before the learned single Judge, the main point argued before us was that since an amended form of Section 33 which was Introduced in the amending Act 36 of 1956, had actually come into force on 10 March 1957, the matter should have been decided on the basis of the amended section the terms of which left no scope for a petition under Section 33A in the case of a retrenchment wholly unconnected with the industrial dispute pending before the tribunal.
4. Even in the original Act of 1947 Section 33 made provisions for maintaining conditions of service, etc., unchanged during the pendency of any proceedings. The original section was replaced by the amending Act of 1950 and Section 33, as it remained in force from 1950 until it was superseded as from 10 March 1957, by the new Section 33 introduced by the amending Act of 1966, read as follows:
Daring the pendency of any conciliation proceedings or proceedings before a tribunal in respect of any Industrial dispute, no employer shall-
(a) alter, to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceedings; or
(b) discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute,
save with the express permission in writing of the conciliation officer, board or tribunal, as the case may be.
The main purpose of the new Section 33 was to draw a clear distinction between changes in conditions of service or dismissals of workmen concerned in a dispute relating to the matters in dispute, and changes in conditions of service or dismissals unconnected with the dispute. The first two sub-sections may be set out-
(1) During the pendency of any conciliation proceeding before a conciliation officer or a board or of any proceeding before 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,-
(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, 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.
5. In the present case there is no question of the retrenchment of Amar Nath having any concern whatever with the dispute which was pending before the tribunal regarding conditions of leave of the workmen as a whole, and it had been argued by the learned counsel for the appellant-society that in that case his application under Section 33A is not at all covered by Sub-section (2) which, in the matter of discharge or dismissal purely relates to discharge or dismissal by way of punishment for misconduct. Section 33A provides for an application by an employee only where an employer has contravened the provisions of Section 33.
6. There is, in fact, no doubt that Sub-section (2)(b) only deals with discharges or dismissals for misconduct, bat the wording is obviously very different indeed from that of the old Section 33(b) which was certainly applicable at the time when Amar Nath's application was filed on 30 November 1956. I would repeat the words 'discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute.' The word 'discharge' followed by the words 'or punish' clearly shows that any discharge Is covered and this would certainly include discharge by way of retrenchment.
7. The question which therefore arises is whether the application filed on 30 November 1966 but not decided until 14 May 1957, should have been decided in the light of the provisions of the old Section 33 or the provisions of the new Section 33 which had come into force on 10 March 1957. The learned Counsel for the appellant has naturally argued that the case was to be decided under the provisions of the new Section 33, bat this would involve holding that this section was intended to be retrospective, since the ordinary rule of law is that any suit or proceeding is to be decoded in accordance with the law in force at the time of its institution. The only two exceptions to this rule would appear to be either that the new law is expressly or by necessary intendment made retrospective and applicable to proceedings pending under the old law, or else that the change in the law is purely on a matter of procedure.
8. In this case the new Section 33 is not expressly made retrospective, nor do find it possible to hold it to be retrospective by necessary intendment. In fact the new section was introduced by an amending Act of 1956 and it appears that different parts of the amended Act were ordered to come into force on different dates. It would seem to be absurd in this case to have delayed the coming into force of the new Section 33 until March 1957 if there was any Intention of making its provisions retrospective.
9. The next question is whether the changes Introduced in the amended section are merely procedural and a perusal of the relevant provisions of the two sections, which I have already set out above, is sufficient to negative this contention. There are in fact substantial and significant changes in the rights of employers and workmen in the matters covered by the section during the pendency of a dispute. Apart from this, the matter has already come before Mehar Singh, J., and myself in Civil Writ No. 257-D of 1957 decided on 22 April 1958 and we held that the changes in Section 33 were not merely procedural. A similar conclusion was reached by Gosain. J., in Karnal Kaithal Co-operative Transport Society, Ltd. v. State and Ors. LXI P.L.R. 250. The learned Judge apparently arrived at this conclusion independently since our judgment, which was not reported, does not seem to have been brought to his notice.
10. The result is that I am of the opinion that the tribunal was entitled to look Into the merits of the discharge of Amar Nath, ostensibly by way of retrenchment, and the finding of the tribunal that the appellant-society had completely failed to show any proper justification or observance of the normal principles is a finding of fact regarding which I agree with the opinion of the learned single Judge that no justification for interference under Article 226 of the Constitution was shown. The result is that I would dismiss the appeal with costs.
A.N. Grover, J.
11. I agree.