JUDGMENT : G.R. UDHWANI, J. 1. Rule was issued by this Court on 17.11.2016. By consent of the parties, the matter is finally heard and disposed of by this judgment. 2. An order dated 5.1.2015 passed by Labour Court, Junagadh in I.D. Complaint No. 10 of 2007 in Reference Demand No. 4 of 1997 lodged against under Section 33-A of the Industrial Disputes Act (for short “the Act”) quashing and setting aside the order of termination dated 22.11.2007 and ordering absorption and reinstatement of the respondent workman at par with one Dana Arjan of Manavadar Seed Farm is questioned in this petition. 3. The case of the respondent workman in the application under Section 33-A of the Act was that he was employed as chowkidar in the Seed Farm of District Panchayat, Junagadh with effect from 1.8.1989; that he was also allotted a quarter and was discharging his duties for 24 hours a day since last 19 years. The workman averred that despite the pendency of demand reference made by Bharatiya Labour Union in the Labour Court under Demand No. 4 of 1997 wherein the petitioners were the parties; his services have been terminated by order dated 22.11.2007 which was served upon him on 30.11.2007 and was accepted by him under protest. It was also averred by the workman that termination was effected without prior notice or notice pay but with a cheque presumably for compensation of his 18 years service which, according to the workman, was inadequate. It was averred that the action of termination was motivated by pending dispute. The workman also pleaded breach of Section 25-F of the Act. The workman also contended that the closure of Seed Farm could not have been effected without following procedure under Section 25-FFF of the Act and that the workman ought to have been absorbed in alternate service at par with one Dana Arjan who was absorbed on closure of Seed Farm at Manavadar. 3.1 In reply, the petitioners disputed that the respondent was working as chowkidar but asserted that he was an agricultural labourer which fact was not further disputed by the workman. 3.1 In reply, the petitioners disputed that the respondent was working as chowkidar but asserted that he was an agricultural labourer which fact was not further disputed by the workman. It was averred that the Seed Farm was owned by the Government and was assigned to the District Panchayat for its operation only, and that on coming into existence of agriculture university and on employment of experts and scientists in the office of the said university, Seed Farm lost its significance in absence of such experts and a resolution with effect from 1.4.2007 was passed surrendering the Seed Farms to the government, and thus in absence of the work of an agricultural assistance with the District Panchayat, the workman was retrenched by complying with Section 25-F of the Act with a cheque of a necessary amount forwarded to the workman which was accepted by him under protest. It was admitted by the petitioners that the respondent workman was employed with them since 18 years. It was explained that erstwhile employee of Manavadar Seed Farm was adjusted at other place in pursuance to the order of the High Court regularising him. On the basis of the above pleading and the oral and documentary evidence that was adduced before the Labour Court and on consideration of Section 33 and Section 33-A of the Act, the Labour Court found that the impugned order of termination was in breach of Section 33(2)(b) of the Act and it also noted that similarly situated employee one Dana Arjan of Manavadar had been absorbed; thus the impugned order was passed. 4. It is required to be noted that except a cursory reference, no arguments seems to have been advanced in regard to breach of Section 25-FFF of the Act presumably considering the scope of Section 33-A of the Act under which the breach of Section 33 of the Act can only be examined. 5. It can be noticed from the facts emerging on record that the fact that the workman was employed in a Seed Farm and the fact that the Seed Farms were surrendered to the government was not disputed. The observations of Section 25-F was also not seriously disputed. However the compensation in that regard was concededly accepted by the workman under protest. The observations of Section 25-F was also not seriously disputed. However the compensation in that regard was concededly accepted by the workman under protest. The question therefore is whether Section 33 of the Act was applicable in the facts of the present case and consequent complaint under Section 33-A of the Act for its breach was maintainable. 6. To appreciate the rival contentions, it would be germane to reproduce Section 33 of the Act. “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 2 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 subsection (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 subsection, a "protected workman", in relation to an establishment, means a workman who, being 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 subsection (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, (an arbitrator), 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, (within a period of three months from the date of receipt of such application), such order in relation thereto as it deems fit : (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 subsection had expired without such proceedings being completed.)” 6.1 It can be noticed from the said provision that during the pendency of specified proceedings before the specified authorities including the Labour Court, the alteration in the service conditions of the workman immediately prevalent before the commencement of such proceedings in regard to any matter connected with the dispute or action on the misconduct connected with the dispute or discharge or other punishment be it dismissal or otherwise of the workman concerned is barred except by permission of the authority concerned. Similarly the alteration in the service conditions of a workman immediately prevalent at the commencement of such proceedings or the action or misconduct not connected with the dispute, discharge or punishment, be it dismissal or otherwise of the concerned workman can be effected only after approval of such an action by the authority concerned and on compliance with other conditions contemplated in the provision. 6.2 It is required to be noted that the protection contemplated under Section 33 of the Act is in regard to alteration of the service conditions as also in regard to misconduct during the pendency of the proceedings before specified authorities. Furthermore, the protection is confined to the workman at whose instance the dispute is raised; or the protected workman. That means in case of other workman, compliance of Section 33 would not be necessary. 6.3 An occasion to alter the service conditions or take disciplinary action for misconduct against the workman would arise only during the subsistence of the establishment and not after its closure. That means in case of other workman, compliance of Section 33 would not be necessary. 6.3 An occasion to alter the service conditions or take disciplinary action for misconduct against the workman would arise only during the subsistence of the establishment and not after its closure. After closure the employment would not subsist and thus the conditions of service would also not subsist. The alteration of the service conditions would necessarily imply the change of one or more of the service conditions while retaining the other service conditions. Likewise occasion to prosecute the workman for misconduct would arise only when he is in employment and not after the cessation of employer-employee relationship. Thus in case of closure there would be no occasion for alteration of the service conditions or to proceed against the workman for misconduct. It is true that the consequence of closure would be the discharge of the employment of the workman. The consequences of closure of the activity or unit or establishment etc. are spelt out in Chapter V-B of the Act and the person aggrieved by non-compliance of any of the provisions contained in the said chapter may resort to the remedy under the said chapter and/or any other provisions of the Act but not under Section 33 or Section 33-A of the Act. Further in the light of the observations made by this Court in Special Civil Application No.10126 of 2014 with Special Civil Application No. 9583 of 2014 in the case of Torrent Power Limited and another v. Chelabhai Nathabhai Luhar and others in para 12 and 13, Section 25-F can be invoked on rendition of the workman surplus while the business or unit or establishment continues. 7. In view of the above discussion, in the opinion of this Court, the Labour Court misconceived the legal position as if every discharge or alteration would attract Section 33 of the Act and therefore the impugned order cannot be sustained. 8. The reliance placed by the learned counsel for the respondent workman on Jaipur Zila Sahakari Bhoomi Vikas Bank Limited v. Ram Gopal Sharma [ (2002) 2 SCC 244 ] is misconceived on the facts of the present case as the said case was not dealing with the factual situation involved in the present case. 8. The reliance placed by the learned counsel for the respondent workman on Jaipur Zila Sahakari Bhoomi Vikas Bank Limited v. Ram Gopal Sharma [ (2002) 2 SCC 244 ] is misconceived on the facts of the present case as the said case was not dealing with the factual situation involved in the present case. 8.1 Reliance placed by the learned counsel for the respondent workman upon M/s. Lokmat Newspapers Pvt. Ltd v. Shankarprasad [ AIR 1999 SC 2423 ] is also misconceived on the facts inasmuch as in that case consequent upon the rationalisation, standardisation or improvement of plant or technique, the surplus employees were sought to be transferred to another unit of the employer which was questioned as the change in condition of the service and the further question was whether Section 33(1) of the Act was breached in absence of necessary permission from the concerned authority during the pendency of the proceedings before it. As elaborately discussed, this Court is concerned with the effect of the closure of a unit or business or activity. There can be no dispute on the proposition of law that in cases where Section 33 applies, it must mandatorily be complied with so as to ensure the statutory safeguards postulated in the provision for the workman during the pendency of certain proceedings. 8.2 It appears that one Dana Arjan was absorbed under circumstances stated above. Despite being pointed out to the Labour Court the reason for absorption of Dana Arjan, the Labour Court committed an error in applying the rule of parity without even bothering to look into the facts of two cases in detail. It was pointed out to it that it was only because of the directions of the High Court to grant permanency to Dana Arjan, he was required to be absorbed. The said facts were ignored by the Labour Court and parity was applied mechanically resulting into erroneous order. Furthermore, the Labour Court fell in error of jurisdiction also because its jurisdiction was confined to examining the case under Section 33A and in absence of reference under Section 10 of the I.D. Act, it was infirm to pass the order of absorption of the workman on the ground of parity. Furthermore, the Labour Court fell in error of jurisdiction also because its jurisdiction was confined to examining the case under Section 33A and in absence of reference under Section 10 of the I.D. Act, it was infirm to pass the order of absorption of the workman on the ground of parity. The parity could have been examined only in a substantial industrial dispute under Section 10 read with Section 7 of the Act and not under Section 33A of the Act. 9. For the foregoing reasons, the impugned order cannot be sustained. It is therefore quashed and set aside. Rule is made absolute with no order as to costs.