32. Offence by companies, etc.—

Where a person committing an offence under this Act is a  company, or other body corporate, or an association of persons (whether incorporated or not), every  director, manager, secretary, agent or other officer or person concerned with the management thereof  shall, unless he proves that the offence was committed without his knowledge or consent, be deemed to  be guilty of such offence. 

4[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 1[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. 

(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 2[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) 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, or 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. 

(3) Notwithstanding anything contained in sub-section (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 conditions 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. 

Explanation.—

For the purposes of this sub-section, a “protected workman”, in relation to an  establishment, means a workman who, being 3[a member of the executive or other office bearer] of a  registered trade union connected with the establishment, is recognised as such in accordance with rules  made in this behalf. 

(4) In every establishment, the number of workmen to be recognised as protected workmen for the  purposes of sub-section (3) 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. 

(5) Where an employer makes an application to a conciliation officer, Board, 1[an arbitrator, a] labour  Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action taken  by him, the authority concerned shall, without delay, hear such application and pass, 4[within a period of  three months from the date of receipt of such application], such order in relation thereto as it deems fit:

1[Provided that where any such authority considers it necessary or expedient so to do, it may, for  reasons to be recorded in writing, extend such period by such further period as it may think fit: 

Provided further that no proceedings before any such authority shall lapse merely on the ground that  any period specified in this sub-section had expired without such proceedings being completed.] 

4. Subs. by Act 36 of 1956, s. 21, for section 33 (w.e.f. 10-3-1957).

1. Ins. by Act 36 of 1964, s. 18 (w.e.f. 19-12-1964).

2. Ins. by s. 18, ibid. (w.e.f. 19-12-1964).

3. Subs. by Act 45 of 1971, s. 5, for “an officer” (w.e.f. 15-12-1971).

4. Subs. by Act 46 of 1982, s. 17, for “as expeditiously as possible” (w.e.f. 21-8-1984).

1. Ins. by Act 46 of 1982, s. 17 (w.e.f. 21-8-1984).

2[33A. Special provision for adjudication as to whether conditions of service, etc., changed  during pendency of proceedings.—

Where an employer contravenes the provisions of section 33 during  the pendency of proceedings 3[before a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal  or National Tribunal], any employee aggrieved by such contravention, may make a camplaint in writing, 5[in the prescribed manner,— 

(a) to such conciliation officer or Board, and the conciliation officer or Board shall take such  complaint into account in mediating in, and promoting the settlement of, such industrial dispute; and 

(b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such  complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall  adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance  with the provisions of this Act and shall submit his or its award to the appropriate Government and  the provisions of this Act shall apply accordingly.]] 

2. Ins. by Act 48 of 1950, s. 34 and the Schedule.

3. Subs. by Act 46 of 1982, s. 18, for certain words (w.e.f. 21-8-1984).

4[33B. Power to transfer certain proceedings.—

(1) The appropriate Government may, by order in  writing and for reasons to be stated therein, withdraw any proceeding under this Act pending before a  Labour Court, Tribunal or National Tribunal and transfer the same to another Labour Court, Tribunal or  National Tribunal, as the case may be, for the disposal of the proceeding and the Labour Court, Tribunal  or National Tribunal to which the proceeding is so transferred may, subject to special directions in the  order of transfer, proceed either de novo or from the stage at which it was so transferred: 

Provided that where a proceeding under section 33 or section 33A is pending before a Tribunal or  National Tribunal, the proceeding may also be transferred to a Labour Court. 

(2) Without prejudice to the provisions of sub-section (1), any Tribunal or National Tribunal, if so  authorised by the appropriate Government, may transfer any proceeding under section 33 or section 33A  pending before it to any one of the Labour Courts specified for the disposal of such proceedings by the  appropriate Government by notification in the Official Gazette and the Labour Court to which the  proceeding is so transferred shall dispose of the same. 

4. Ins. by Act 36 of 1956, s. 23 (w.e.f. 10-3-1957).

5[33C. Recovery of money due from an employer.—

(1) Where any money is due to a workman  from an employer under a settlement or an award or under the provisions of 6[Chapter VA or Chapter  VB], the workman himself or any other person authorised by him in writing in this behalf, or, in the case  of the 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 the 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:  

Provided that every such application shall be made within one year from the date on which the money  became due to the workman from the employer: 

Provided further that 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. 

(2) 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; 1[within a period not exceeding three months:] 

1[Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to  do, he may, for reasons to be recorded in writing, extend such period by such further period as he may  think fit.] 

(3) 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. 

(4) 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 sub-section (1). (5) 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. 

5. Subs. by Act 36 of 1964, s. 19, for section 33C (w.e.f. 19-12-1964).

6. Subs. by Act 32 of 1976, s. 4, for “Chapter VA” (w.e.f. 5-3-1976).

1. Ins. by Act 46 of 1982, s. 19 (w.e.f. 21-8-1984).

Explanation.—

In this section “Labour Court” includes any court constituted under any law relating to  investigation and settlement of industrial disputes in force in any State.]]  

STATE AMENDMENT 

Assam 

Amendment of Section 33-C.—

In the principal Act, in section 33-C, in sub-section (1), for the  words “to the collector who shall proceed to recover the same in the same manner as an arrear of land  revenue” the words “to the Chief Judicial Magistrate having jurisdiction who shall proceed to realize as if  it were a fine imposed by such Magistrate” shall be substituted. 

[Vide Assam Act 22 of 2007, s. 3] 

34. Cognizance of offences.—

(1) No Court shall take cognizance of any offence punishable under  this Act or of the abetment of any such offence, save on complaint made by or under the authority of the  appropriate Government. 

(2) No Court inferior to that of 2[a Metropolitan Magistrate or a Judicial Magistrate of the first class],  shall try any offence punishable under this Act. 

2. Subs. by Act 46 of 1982, s. 20, for certain words (w.e.f. 21-8-1984).

35. Protection of persons.—

(1) No person refusing to take part or to continue to take part in any  strike or lock-out which is illegal under this Act shall, by reason of such refusal or by reason of any action  taken by him under this section, be subject to expulsion from any trade union or society, or to any fine or  penalty, or to deprivation of any right or benefit to which he or his legal representatives would otherwise  be entitled, or be liable to be placed in any respect, either directly or indirectly, under any disability or at  any disadvantage as compared with other members of the union or society, anything to the contrary in the  rules of a trade union or society notwithstanding. 

(2) Nothing in the rules of a trade union or society requiring the settlement of disputes in any manner shall  apply to any proceeding for enforcing any right or exemption secured by this section, and in any such proceeding the  Civil Court may, in lieu of ordering a person who has been expelled from membership of a trade union or society to  be restored to membership, order that he be paid out of the funds of the trade union or society such sum by way of  compensation or damages as that Court thinks just. 

3[36. Representation of parties.—

(1) A workman who is a party to a dispute shall be entitled to be represented  in any proceeding under this Act by— 

(a) 4[any member of the executive or office bearer] of a registered trade union of which he is a member:

(b) 4[any member of the executive or other office bearer] of a federation of trade unions to which the trade  union referred to in clause (a) is affiliated; 

(c) where the worker is not a member of any trade union, by 4[any member of the executive or other office  bearer] of any trade union connected with, or by any other workman employed in the industry in  which the worker is employed and authorised in such manner as may be prescribed.

(2) An employer who is a party to a dispute shall be entitled to be represented in any proceeding under this Act by— 

(a) an officer of an association of employers of which he is a member; 

(b) an officer of a federation of association of employers to which the association referred to in  clause (a) is affiliated; 

(c) where the employer is not a member of any association of employers, by an officer of any  association of employers connected with, or by any other employer engaged in, the industry in which  the employer is engaged and authorised in such manner as may be prescribed. 

(3) No party to a dispute shall be entitled to be represented by a legal practitioner in any conciliation  proceedings under this Act or in any proceedings before a Court. 

(4) In any proceeding 1[before a Labour Court, Tribunal or National Tribunal], a party to a dispute  may be represented by a legal practitioner with the consent of the other parties to the proceedings and  2[with the leave of the Labour Court, Tribunal or National Tribunal, as the case may be].] 

3. Subs. by Act 48 of 1950, s. 34 and the Schedule, for section 36.

4. Subs. by Act 45 of 1971, s. 6, for “an officer” (w.e.f. 15-12-1971).

1. Subs. by Act 36 of 1956, s. 24, for “before a Tribunal” (w.e.f. 10-3-1957).

2. Subs. by s. 24, ibid., for “with the leave of the Tribunal” (w.e.f. 10-3-1957).

3[36A. Power to remove difficulties.—

(1) If, in the opinion of the appropriate Government, any  difficulty or doubt arises as to the interpretation of any provision of an award or settlement, it may refer  the question to such Labour Court, Tribunal or National Tribunal as it may think fit. 

(2) The Labour Court, Tribunal or National Tribunal to which such question is referred shall, after  giving the parties an opportunity of being heard, decide such question and its decision shall be final and  binding on all such parties.] 

3. Ins. by s. 25, ibid. (w.e.f. 10-3-1957).

4[36B. Power to exempt.—

Where the appropriate Government is satisfied in relation to any  industrial establishment or undertaking or any class of industrial establishments or undertakings carried  on by a department of that Government that adequate provisions exist for the investigation and settlement  of industrial disputes in respect of workmen employed in such establishment or undertaking or class of  establishments or undertakings, it may, by notification in the Official Gazette, exempt, conditionally or  unconditionally such establishment or undertaking or class of establishments or undertakings from all or  any of the provisions of this Act.]. 

4. Ins. by Act 46 of 1982, s. 21 (w.e.f. 21-8-1984).

37. Protection of action taken under the Act.—

No suit, prosecution or other legal proceeding shall  lie against any person for anything which is in good faith done or intended to be done in pursuance of this  Act or any rules made thereunder. 

38. Power to make rules.—

(1) The appropriate Government may, subject to the condition of  previous publication, make rules for the purpose of giving effect to the provisions of this Act. 

(2) In particular and without prejudice to the generality of the foregoing power, such rules may  provide for all or any of the following matters, namely:— 

(a) the powers and procedure of conciliation officers, Boards, Courts, 5[Labour Courts, Tribunals  and National Tribunals] including rules as to the summoning of witnesses, the production of  documents relevant to the subject-matter of an inquiry or investigation, the number of members  necessary to form a quroum and the manner of submission of reports and awards; 

6[(aa) the form of arbitration agreement, the manner in which it may be signed by the parties,  7[the manner in which a notification may be issued under sub-section (3A) of section 10A,] the  powers of the arbitrator named in the arbitration agreement and the procedure to be followed by him; 

(aaa) the appointment of assessors in proceedings under this Act;

(b) the constitution and functions of and the filling of vacancies in Works Committees, and the  procedure to be followed by such Committees in the discharge of their duties; 

2[(c) the salaries and allowances and the terms and conditions for appointment of the presiding  officers of the Labour Court, Tribunal and the National Tribunal including the allowances admissible  to members of Courts, Boards and to assessors and witnesses;] 

(d) the ministerial establishment which may be allotted to a Court, Board, 3[Labour Court,  Tribunal or National Tribunal] and the salaries and allowances payable to members of such  establishments; 

(e) the manner in which and the persons by and to whom notice of strike or lock-out may be  given and the manner in which such notices shall be communicated; 

(f) the conditions subject to which parties may be represented by legal practitioners in  proceedings under this Act before a Court, 3[Labour Court, Tribunal or National Tribunal]; 

(g) any other matter which is to be or may be prescribed. 

(3) Rules made under this section may provide that a contravention thereof shall be punishable with  fine not exceeding fifty rupees. 

4[(4) All rules made under this section shall, as soon as possible after they are made, be laid before the  the State Legislature or, where the appropriate Government is the Central Government, before both  Houses of Parliament.] 

5[(5) Every rule made by the Central Government under this section shall be laid, as soon as may be  after it is made, before each House of Parliament while it is in session for a total period of thirty days  which may be comprised in one session or in 6[two or more successive sessions, and if, before the expiry  of the session immediately following the session or the successive sessions aforesaid] both Houses agree  in making any modification in the rule, or both Houses agree that the rule should not be made, the rule  shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however,  that any such modification or annulment shall be without prejudice to the validity of anything previously  done under that rule.] 

5. Subs. by Act 36 of 1956, s. 26, for “and Tribunals” (w.e.f. 10-3-1957).

6. Ins. by s. 26, ibid. (w.e.f. 10-3-1957).

7. Ins. by Act 36 of 1964, s. 20 (w.e.f. 19-12-1964).

1 Clause (ab) omitted by Act 24 of 2010, s. 8 (w.e.f. 15-9-2010).

2. Subs. by s. 8, ibid., for clause (c) (w.e.f. 15-9-2010).

3. Subs. by 36 of 1956, s. 26, for “or Tribunal” (w.e.f. 10-3-1957).

4. Ins. by s. 26, ibid. (w.e.f. 10-3-1957).

5. Ins. by Act 36 of 1964, s. 20 (w.e.f. 19-12-1964).

6. Subs. by Act 32 of 1976, s. 5, for certain words (w.e.f. 5-3-1976).

7[39. Delegation of powers.—

The appropriate Government may, by notification in the Official  Gazette, direct that any power exercisable by it under this Act or rules made thereunder shall, in relation  to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable  also,— 

(a) where the appropriate Government is the Central Government, by such officer or authority  subordinate to the Central Government or by the State Government, or by such officer or authority  subordinate to the State Government, as may be specified in the notification; and 

(b) where the appropriate Government is a State Government, by such officer or authority subordinate to the State Government as may be specified in the notification.] 

7. Subs. by Act 36 of 1956, s. 27, for section 39 (w.e.f. 17-9-1956).

8[40. Power to amend Schedules.—

(1) The appropriate Government may, if it is of opinion that it is  expedient or necessary in the public interest so to do, by notification in the Official Gazette, add to the  First Schedule any industry, and on any such notification being issued, the First Schedule shall be deemed  to be amended accordingly. 

(2) The Central Government may, by notification in the Official Gazette, add to or alter or amend the  Second Schedule or the Third Schedule and on any such notification being issued, the Second Schedule or  the Third Schedule, as the case may be, shall be deemed to be amended accordingly. 

(3) Every such notification shall, as soon as possible after it is issued, be laid before the Legislature of  the State, if the notification has been issued by a State Government, or before Parliament, if the  notification has been issued by the Central Government.

8. Subs. by Act 36 of 1964, s. 21, for section 40 (w.e.f. 19-12-1964).