ORDER
K.L. Gosain, J.
1. The facts giving rise to this petition under Articles 226 and 227 of the Constitution of India are as under: An industrial dispute arose between the petitioners Messrs Karnal-Kaithal Co-operative Transport Society Limited, Karnal, on the one hand, and its employees on the other. The State of Punjab referred the aforesaid dispute for adjudication to the Industrial Tribunal, Punjab, Jullundur, vide Reference No. 36 of 1956. During the pendency of the dispute the petitioner Society retrenched Shri Hans Raj, Assistant Blacksmith, who was one of their employees. The said retrenchment having been made in contravention of Section 33 of the Industrial Disputes Act, Shri Hans Raj employee filed on 30-11-1956 a complaint under Section 33A of the aforesaid Act which was treated as an industrial dispute and was adjudicated upon by the Industrial Tribunal, Jullundur. The award in respect of this complaint was Made by the Tribunal on 7-6-1957 and was published in the Punjab Government Gazette dated 5-7-1957, vide Notification No. 6582/7542-CLab-57/56061. The petitioner Society, feeling aggrieved against the said award, has come up to this Court under Article 228 of the Constitution of India seeking to have the same quashed.
2. The petition was contested by Shri Hans Raj as also by the State of the Punjab who controverted the various allegations made by the petitioners in their petition for writ.
3. Mr. Hans Raj Sodhi, learned counsel for thepetitioners, has urged before me three points whichare as under:
(1) That the retrenchment of Shri Hans Raj was not connected with the dispute which was the subject-matter of Reference No. 36 of 1956, and the provisions of Section 33 of the Act were, therefore, never contravened;
(2) that the dispute between Shri Hans Raj and the petitioners is of an individual nature and does not fall within the ambit of Section 10; and
(3) that there was no material at all to record a finding that the retrenchment of Hans Raj had been made as a result of victimisation or that the provisions of Section 33 of the Act had in any way been contravened.
4. Regarding the first point it must be noted that the retrenchment in his case was made on 10-11-1956 and in order to find out whether the said retrenchment was in contravention of the provisions of Section 33 of the Industrial Disputes Act, the provisions of law which were in force on the date of retrenchment, i.e., 10-11-1956, have only to be taken, into consideration. The provisions of Section 33 of (as amended by?) Act XXXVI of 1956 which came into effect on 10-3-1957 cannot possibly govern the case and, therefore, the question whether the employer had altered the terms of service in regard to any matter connected with the dispute does not at all fall for decision. The relevant portion of Section 33 of the Act as it stood before its amendment by Act XXXVI of 1956 was in the following terms:
'No employer shall during the pendency of any conciliation proceedings or proceedings before a Tribunal, in respect of any industrial 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 proceedings, nor, save with the express permission in writing of the conciliation officer, Board or Tribunal, as the case may be, shall he during the pendency of such proceedings, discharge, dismiss, or otherwise punish any such workmen, except for misconduct not connected with the dispute'.
5. Mr. Hans Raj Sodhi, learned Counsel for the petitioners, contends that the provisions of Section 33 as amended should be taken into consideration for the purpose of finding whether there was a contravention by the petitioner of the provisions of the same, I am wholly unable to agree with the said contention and my reasons for the same are as follows :
(1) The complaint of Shri Hans Raj was made on 30-11-1956 and in the said complaint he hadalleged that his employers, i.e., the petitioners, had retrenched him in contravention of the provisions of Section 33. This complaint was to be treated as an industrial dispute and was to be adjudicated upon by the Tribunal. The Tribunal was, therefore, solely concerned with the fact whether or not the retrenchment of Shri Hans Raj effected on 10-11-1956 was in contravention of the provisions of Section 33 as they then existed. The Tribunal had no power to decide whether the provisions of law which did not exist at the time of retrenchment had Been contravened in the matter of the said retrenchment;
(2) Act XXXVI of 1956 is in no way retrospective, and in the absence of an express or implied provi-sion giving the statute a retrospective operation, it must beheld that the statute operates prospectively and not retrospectively;
(3) the operative part of Section 33 of the amended Act XXXVI of 1956 reads-
'During the pendency of any conciliation proceedings before a conciliation officer or a Board orof any proceedings before a Labour Court or Tribunal or *****' The 'Tribunal' as defined by clause (r) of Section 2 of the amended Act means 'an Industrial Tribunal' constituted under Section 7A'. It is admitted that a Tribunal as defined in Section 7A did not exist and no dispute was pending before any such Tribunal at the time when Shri Hans Raj was retrenched. It is true that the definition of Tribunal' was later widen-ed by Act XVIII of 1957, but the said Act came into force on 8th June 1957, i. e. after the award in this case had been made. The provisions of theamended Act XXXVI of 1956 or of Act XVIII of 1957 cannot be of any avail to the petitioners; and
(4) the provisions of Section 33 lay down-'No employer 'shall' during the pendency of any ......'
The section therefore gives a sort of command to the employers that they would not take any measures against any employee during the pendency of an industrial dispute with regard to the same concern unless particular conditions are fulfilled. In a complaint made under Section 33A the Industrial Tribunal is therefore only concerned with the command as it existed on the date when contravention of the same was made.
6. For the foregoing reasons I am definitely of the opinion that the question -- whether the conditions of service of Shri Hans Raj were altered in regard to any matter connected with the dispute which was the subject-matter of reference -- does not arise for decision in the present case. It is admitted that an industrial dispute between the petitioners on the one hand and their employees on the other was the subject-matter of reference in the Tribunal at the time when the petitioner was retrenched in contravention of the provisions of Section 33 of the Act as they then existed.
7. Regarding the second contention of Mr. Sodhi, Section 33A of the Act definitely provides that the Tribunal shall adjudicate upon a complaint as if it were a dispute referred to or pending before it. The question of the dispute being of an individual nature does not at all arise so far as a complaint under Section 33A of the Act goes.
8. Regarding the third contention of Mr Sodhi, no apparent mistake on the face of the record has been brought to my notice. Mr. Sodhi urges that it is entirely for the management to decide what particular staff it will maintain and what particular staff it will retrench and that the Industrial Tribunal cannot compel the employers to keep a particular number of employees or not to retrench unnecessary labour force. There is no doubt that the management is the best judge of its labour force and no outside agency can interfere in that.
The management, however, can be allowed to retrench workers only if the action of the management is not tainted by any mala fides or is not as a result of victimisation for the particular employee taking part in the industrial dispute already pending or participating in the activities of t the Labour Union. In the present case the Tribunal has come to definite finding that the retrenchment of Shri Hans Raj was made mala fide and with a view to victimise him for participating in the activities of the Labour Union,
The Secretary of the petitioner Society appeared as a witness before the Industrial Tribunal but did not make any statement to show that Shri Hans Raj was the juniormost employee or was the only workman of his category so as to be retrench-ed. Before the Industrial Tribunal the petitioners did not even deny the allegations made by Shri Hans Raj that he was being victimised on account of his active participation in the activities of the Union.
In these proceedings I am not sitting in appealover the judgment passed by the Industrial Tribunalbut, even if I were, I do not find any reason toupset the aforesaid finding of the Industrial Tribunal.The petitioners had full opportunity to produce theirevidence before the Industrial Tribunal and it isnot shown that any particular evidence which theywanted to lead was shut out. I do not find anyforce in the petition, for writ which I dismiss with costs. Counsel fee Rs. 100/-.