JUDGMENT By order dated 25/10/2013, this Court had directed to issue notice to the respondent indicating that the petition may be heard and disposed of finally at the stage of admission. The respondent has been duly served with the notice and since he was absent on 18/12/2013 when the matter was called out, an opportunity was given to him to appear today. However, the respondent is absent. 2. Heard Mr. Dessai, learned Counsel appearing on behalf of the petitioner. 3. By this petition, filed under Article 227 of the Constitution of India, the petitioner has challenged the order dated 04/02/2013 passed by the Industrial Tribunal and Labour Court at Panaji ('Trial Court'), in Case No. C-IT/13/2011. 4. The respondent is working as a conductor for the petitioner and having badge No. 5401 and posted at Vasco depot. Industrial Proceedings under No. IT/54/07 were pending before the Trial Court on the issue of legality of withholding of two increments of the respondent on account of irregularity committed by him which included excess in cash bag due to non-issuance of tickets and a hidden amount of Rs. 132/- in his shirt pocket. There was short payment of Rs. 1,490/- on the part of the respondent on 11/01/2006 and pursuant to audit query, the Accounts Section of the petitioner, on 28/04/2011, directed the respondent to deposit the said short payment of Rs. 1,490/- and he was informed that in the event of failure of deposit, the same shall be deducted from the salary of the respondent, for the month of May. On 23/06/2011, the respondent filed a complaint under Section 33-A of the Industrial Disputes Act, 1947 (the Act, for short) before the Trial Court challenging the order dated 28/04/2011 passed by the Assistant Accountant of the petitioner. On 04/07/2012, the petitioner filed written statement to the said complaint. 5. The Trial Court framed the following issues: (i) Whether the Party I proves that the Accounts Section of Party II malafidely deducted an amount of Rs.1490/- from his salary for May, 2011 during the pendency of Ref. 54/07, for adjudication before this Tribunal? (ii) Whether the Party I proves that the said deduction is in violation of the principles of natural justice and certified standing orders as applicable to the Party II? (iii) Whether Party I proves that Party II has contravened Section 33 of Industrial Disputes Act, 1947? 54/07, for adjudication before this Tribunal? (ii) Whether the Party I proves that the said deduction is in violation of the principles of natural justice and certified standing orders as applicable to the Party II? (iii) Whether Party I proves that Party II has contravened Section 33 of Industrial Disputes Act, 1947? (iv) Whether the Party II proves that Party I did not dispute the short payment of Rs.1490/- deposited by him on 11/01/2006 and hence the question of issuing charge sheet and holding enquiry does not arise? (v) What relief ? What award? 6. Parties led evidence in the matter. On 09/04/2012, the Trial Court passed the order on preliminary issues in IT/54/2007 holding that the enquiry held against the respondent is fair and proper and that the respondent is guilty of charges levied against him. Vide judgment and award dated 13/09/2012 passed in the said IT/54/2007, the learned Trial Court held that withholding of two annual increments, of the respondent, for the years 1994 and 1995 was legal and justified. Vide impugned judgment and award dated 04/02/2013, the Trial Court allowed the complaint of the respondent under Section 33-A of the Act. Aggrieved by the said judgment and award, the petitioner has filed the present petition. 7. Mr. Dessai, learned Counsel appearing on behalf of the petitioner submitted that the Trial Court failed to consider that the complaint under Section 33-A of the Act was not maintainable. He further submitted that there was clear admission on the part of the respondent that there was short payment of Rs. 1,490/-, for whatever reasons it may be. It was also an admitted fact that the respondent had not deposited the short payment. According to the learned Counsel, the said deduction of an amount of Rs. 1,490/- was only by way of recovery of the amount due to the petitioner and was not by way of punishment of any nature for any misconduct etc. and, therefore, Section 33(2)(b) of the Act was not applicable. He, therefore, submitted that the Trial Court misconstrued the import of Section 33(2)(b) of the Act while concluding that the petitioner acted in violation of said Section 33(2)(b) of the Act. He pointed out that the Trial Court has proceeded only on the premises that the deduction amounted to punishment. and, therefore, Section 33(2)(b) of the Act was not applicable. He, therefore, submitted that the Trial Court misconstrued the import of Section 33(2)(b) of the Act while concluding that the petitioner acted in violation of said Section 33(2)(b) of the Act. He pointed out that the Trial Court has proceeded only on the premises that the deduction amounted to punishment. He submitted that in fact, the said deduction was only by way of recovery of monies corresponding to the short payment of Rs. 1,490/-. He urged that the learned Trial Court has not given any reasons for holding that the deduction of amount from monthly salary would amount to change of conditions of service as envisaged under Section 33-A of the Act. He submitted that there was neither any reduction in the salary nor any other change in the condition/s of service and the deduction was from the salary of only one month which was for recovery of the short payment. He submitted that, therefore, the conclusion that the deduction amounted to change of conditions of service, is perverse. Mr. Dessai further alleged that the question whether Assistant Accountant had powers or not to make the deduction, was not the question to be decided under Section 33-A of the Act nor there was any relevance of that question in the matter. He submitted that even if the recovery was bad, then also, Section 33-A of the Act will not come into play. He read out the written statement filed by the petitioner before the Trial Court in answer to the complaint of the respondent wherein it is nowhere stated that the respondent committed misconduct and, therefore, he is being punished with the deduction of amount from his salary. He submitted that the punishment has its own consequences and, therefore, before punishing an employee, the Standing Orders have to be complied with by affording a reasonable opportunity to the employee for explaining. He urged that in the present case, there is no punishment at all and, therefore, clause 29(b)(i) of the Standing Orders was not applicable. He submitted that the impugned judgment and award is illegal and perverse and, therefore, is bound to be quashed and set aside. 8. I have gone through the material produced by the petitioner on record. I have considered the submissions made by the learned Counsel on behalf of the petitioner. 9. He submitted that the impugned judgment and award is illegal and perverse and, therefore, is bound to be quashed and set aside. 8. I have gone through the material produced by the petitioner on record. I have considered the submissions made by the learned Counsel on behalf of the petitioner. 9. Section 33-A of the Act provides as under: “33-A. 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 before a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal, any employee aggrieved by such contravention may, make a complaint in writing, [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.” 10. Thus, from the above provision of Section 33-A of the Act, it is clear that the complaint under the said provision can be made where there is contravention of the provisions of Section 33 by the employer, during the pendency of the proceedings before the Conciliation Officer, Board, Arbitrator, Labour Court, Tribunal or National Tribunal. 11. Section 33(2)(b) of the Act provides as under: “33(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 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)....................... (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.” 12. Thus, the provisions of Section 33(2)(b) of the Act comes into play only if there is any misconduct and consequent discharge or dismissal from service or punishment on account of the same. In the present case, there is mere deduction of the amount from the salary, since there was short payment deposited by the respondent. The said deduction from the salary was not made on the ground that the respondent had committed misconduct. It was not by way of punishment. The respondent in the complaint had stated that the amount, which was recovered from his salary was the amount lost in the course of the accident and, therefore, the same ought not to have been recovered from his salary. Thus, the short payment was admitted, though the reason was that the said amount was lost in the course of accident and ought not to have been recovered. The respondent in the written statement nowhere alleged that the said recovery of short payment was by way of punishment on account of any misconduct. Punishment has its own consequences due which enquiry is contemplated. Whether recovery could have been made or not and whether the Assistant Accountant had powers to effect the deduction or not are not the questions which can fall under Section 33-A of the Act. In such circumstances, the question of holding departmental enquiry and giving reasonable opportunity to the respondent before recovery of the said amount, does not arise. There is no dispute that clause 29(b)(i) of the Certified Standing Orders of the Corporation provides that no workman shall be punished till a written memorandum of the charges setting forth the circumstances appearing against him and the nature of the misconduct involved and requiring his explanation, has been issued to him and he has been afforded a reasonable opportunity to submit his explanation in writing. In the present case, since there was no misconduct, there was no enquiry and hence, there was no punishment. In the present case, since there was no misconduct, there was no enquiry and hence, there was no punishment. In the circumstances above, clause 29(b)(i) of the Standing Orders was not applicable. 13. The learned Trial Court has addressed itself to the question of deduction by assuming that the same was by way of punishment. The records do not reveal so. No doubt, a cursory finding has been rendered to the effect that the deduction of amount from monthly salary would amount to change in the conditions of service as envisaged in Section 33-A of the Act. However, absolutely no reason has been given for such a finding. It is difficult to believe that mere deduction from the salary of one month for recovery of amount due would amount to change in conditions of service. There is no reduction in the salary. The above finding is not sustainable. The impugned judgment and award is, therefore, illegal and perverse and, therefore, liable to be quashed and set aside. 14. In the result, the petition is allowed. (a) The impugned judgment and award dated 04/02/2013 passed by the Trial Court in the Case No. C-IT/13/2011 is quashed and set aside. 15. The petition stands disposed of accordingly.