JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Bhatt, learned Senior Counsel with Mr. Vaghela, learned Advocate for the petitioner and Mr. Mankad, learned Advocate for the respondent. 2. The petitioner-Baroda/Sugam Dairy has by present petitions challenged common order dated 10-4-2015 passed by learned Industrial Tribunal at Vadodara in Complaint (I.T.) No. 66 of 2012 to Complaint (I.T.) No. 90 of 2012 whereby learned Tribunal, in light of the conclusion that the opponents committed breach of Sec. 33 of the Industrial Disputes Act, 1947 (hereinafter referred to as the "I.D. Act"), directed the opponents to reinstate the claimants with the clarification that if opponent Nos. 2 and 3 fail to comply the direction then opponent No. 1 shall be obliged to comply the award. 3. So far as factual background is concerned, it has emerged that during pendency of dispute i.e. Reference (I.T.) No. 93 of 2011 the persons concerned in said reference case filed separate/individual complaints with the allegation that the opponents terminated their services during pendency of the said reference, and thereby, committed breach of Sec. 33 of the I.D. Act. The said complaints came to be registered as Complaint (I.T.) Nos. 66 to 90 of 2012. 3.1. In the said complaints the complainants alleged that they came to be employed during the period from January, 2004 to April, 2006. The details with regard to date on which each complainant came to be employed is recorded by learned Labour Court in Paragraph No. 11 of the impugned award. The complainants further alleged that they were engaged as operators with the opponents. They further alleged that though they worked regularly and continuously rendered services the opponent dairy, failed to regularize their services and continued to treat them as daily-wagers and they were being treated as contract workers, and that therefore, in 2011 the complainants raised dispute with the demand for regularization in service and for regular salary and pay-scale in the opponent dairy. The complainants further alleged that appropriate Government referred the said dispute vide order of reference dated 4-6-2011 and learned Tribunal at Vadodara registered the said dispute as Reference (I.T.) No. 93 of 2011. The said complainants further alleged that while the said reference seeking regularization of service and regular pay-scale was pending, the opponents terminated their services without following procedure under Sec. 33 of I.D. Act. The said complainants further alleged that while the said reference seeking regularization of service and regular pay-scale was pending, the opponents terminated their services without following procedure under Sec. 33 of I.D. Act. The complainants alleged that the opponents did not seek permission/approval under Sec. 33 of I.D. Act before terminating their services which tantamount to breach of Sec. 33. With the said allegation, the complainants demanded re-instatement in service. 3.2. Along with present petitioner, M/s. Sigma Enterprise was also impleaded as opponent in the Reference Case No. 93 of 2011. The allegation with regard to termination of services and about breach of Sec. 33 was alleged against both the opponents. It is also relevant to note that during pendency of the reference case, the opponent had terminated the contract with Sigma Enterprise and another contract was introduced. Subsequently, 3rd contractor came to be engaged by the dairy. By means of appropriate application the complaints sought to implead, in the complaints, as party opponent, M/s. Prepack Engineering (as party opponent in above-mentioned complaints). 3.3. The said request came to be granted vide order dated 12-2-2013. 3.4. It appears that on or around 9-1-2013, the contract with said M/s. Prepack Engineering also came to be discontinued. Therefore, the dairy awarded same job to other contractor viz. Elemech Services. 3.5. Therefore, the complainants submitted another application to implead said other (3rd) contractor. The application filed by the complainants to implead 3rd contractor was not allowed by learned Tribunal. 3.6. From the record, it has also emerged that during proceeding before learned Tribunal present petitioner and opponent No. 2 filed their respective written statements however 3rd opponent did not file reply before learned Tribunal. 3.7. In their complaints, the complainants alleged that their services came to be terminated on 29-12-2012. 3.8. So far as the opponent No. 1 (present petitioner) is concerned, it had filed written statement and denied said allegation and also opposed the relief prayed for by the complainants. The dairy also denied the allegation about date of appointment mentioned by the complainants. The dairy also claimed that the complainants are not its employees, and therefore, complaints are not maintainable against it and that the complainants are contract labourers and employee of the opponent No. 2, and therefore, any relief against the dairy may not be granted. 3.9. The dairy also denied the allegation about date of appointment mentioned by the complainants. The dairy also claimed that the complainants are not its employees, and therefore, complaints are not maintainable against it and that the complainants are contract labourers and employee of the opponent No. 2, and therefore, any relief against the dairy may not be granted. 3.9. The dairy also claimed in its written statement that the services of the claimants were not terminated, but the claimants were transferred, by the contractor to certain other establishment, in December, 2012 and that the allegation that the service came to be terminated on 29-12-2012 is incorrect. The opponent dairy also claimed that it had awarded job contract - for operation and maintenance of Pouch Packing Machine to the said contractors and the obligation of the contractor/s was to execute said work through its own employees. With the said submission, the dairy claimed that any direction against the dairy may not be passed. 3.10. Before proceeding further, it is necessary to mention that after the contract with the opponent No. 1 expired/came to be terminated and when the present respondent No. 3 came to be inducted as the contractor for the said work, the newly inducted contractor i.e. M/s. Prepack Engineering continued the same set of employees (i.e. present complainants) who were employees and working from 2004-2006 onwards with the dairy. Differently put, the newly inducted contractor i.e. M/s. Prepack did not employ/bring its own set of employees, but it continued the same set of employees who were already working in the dairy. 3.11. At this stage, it is also relevant to note that when the complainants raised dispute (the reference case) the complainants also prayed for interim relief in the said reference case against probable termination of their services. It also appears that initially learned Tribunal had granted interim relief restraining the dairy/contractor' from terminating services of the claimants however, said interim relief (in reference case) subsequently came to be vacated in May, 2012 on the ground that the relief was granted because there was apprehension (that their services would be terminated), however since termination did not occur there was no justification to apprehend the termination and/or to continue the interim relief. 3.12. 3.12. After vacation of the said interim relief (in the reference case) the complainants approached Tribunal with above-mentioned complaints and with the allegation that the opponents (i.e. dairy and the contractors) terminated their services. 3.13. In this context, it is relevant to recall that the dairy also claimed that actually the services of the claimants have not been terminated, but the contractor has transferred the complainants to other establishment, and that therefore, also the allegation about breach of Sec. 33 are unjustified. 3.14. After completion of pleadings the complainants and the opponent dairy led evidence (oral as well as documentary). 3.15. So far as M/s. Sigma Enterprises is concerned, the said opponent No. 2 before learned Tribunal did not file reply and did not lead evidence. Before this Court, the said opponent has maintained a stand that any notice was not served to it. The fact remains that the said opponent M/s. Sigma Enterprise did not file reply and did not lead evidence. 3.16. So far as 3rd opponent i.e. M/s. Prepack Engineering is concerned, the said establishment also did not file reply and did not lead evidence. 3.17. In this background, learned Tribunal adjudicated the complaints and passed impugned common award. 4. Mr. Bhatt, learned Senior Counsel with Mr. Vaghela, learned Advocate for the petitioner assailed the impugned award and submitted that the award is erroneous, unjust and arbitrary. He would also submit that apart from material and substantial error and defect in the award with regard to factual aspects and evidence, more serious error in the award is with regard to final conclusion and final direction issued by the learned Tribunal. According to the petitioner-dairy the final conclusion and final direction by the learned Tribunal should be set aside because are contrary to the evidence on record, in total disregard to the provision under Sec. 33 of the I.D. Act, and effect of the said Sec. 33 or basic and primary requirement of Sec. 33 of the I.D. Act. Learned Senior Counsel submitted that the dairy had awarded contract of job-work to said M/s. Sigma Enterprise and the said contractor was obliged to execute job awarded to it through its own set of employees and the claimants were, initially, employed by the said contractor M/s. Sigma Enterprises. Learned Senior Counsel submitted that the dairy had awarded contract of job-work to said M/s. Sigma Enterprise and the said contractor was obliged to execute job awarded to it through its own set of employees and the claimants were, initially, employed by the said contractor M/s. Sigma Enterprises. Accordingly, it was the contractor who employed the complainants and relationship of employer and employee between the claimants and the dairy never came in existence and that claimants were not employee of the dairy. He submitted that since dairy was not employer of the complainants, the complaints were not maintainable against the dairy and the claimants could not have filed and maintained the complaints against the dairy. Mr. Bhatt, learned Senior Counsel submitted that without appreciating the scope and effect of Sec. 33 and without appreciating that even if breach of Sec. 33 is established, appropriate direction can be issued only against employer and only employer of the claimants can be held responsible for the breach, however, learned Tribunal passed directions against the dairy. He further submitted that in view of the fact that the dairy cannot be said to be employer, the Tribunal could not have passed any direction against dairy. However, learned Tribunal failed to appreciate the said position and passed direction against dairy and that therefore award should be set aside. 4.1. He also submitted that learned Labour Court ignored material evidence on record. In this context, he emphasized the admission by the complainant/witness during cross-examination wherein the complainants/witness admitted that his service was transferred to Delhi and the said transfer order was served to him. On strength of the said deposition, Mr. Bhatt, learned Senior Counsel submitted that the said admission established that the services of the claimants were transferred and they were not terminated from service, and that therefore, the conclusion about breach of Sec. 33 is unjustified and unsustainable. He also submitted that the learned Tribunal failed to appreciate that any ingredients of Sec. 33 or Sec. 9A was not applicable in the facts of the case and the complainants failed to establish breach of Sec. 33. He relied on subsequent development. He submitted that after learned Tribunal passed the order in the said complaints even the parent Reference No. 93 of 2011 (wherein complaints came to be filed) is rejected by learned Tribunal vide award dated 22-5-2017. He relied on subsequent development. He submitted that after learned Tribunal passed the order in the said complaints even the parent Reference No. 93 of 2011 (wherein complaints came to be filed) is rejected by learned Tribunal vide award dated 22-5-2017. He submitted that in that view of the matter even otherwise, the complaints and the order would not survive. With the said submission, Mr. Bhatt, learned Senior Counsel submitted that the impugned common award and the complaints may be set aside. 5. Mr. Mankad, learned Advocate for the respondent opposed the petitions and the submissions. According to learned Counsel for the complainants, the submission by the company on the basis of award in Reference No. 93 of 2011 which came to be passed subsequently i.e. on 22-5-2017 has no relevance and the complaint cannot be treated as in-fructuous only on the ground that the reference wherein complaint is filed is decided/disposed of. He further submitted that even otherwise, said award dated 22-5-2017 is challenged by the workmen in Special Civil Application No. 12909 of 2018 and the said petition is pending for admission hearing. 5.1. Learned Advocate for the complainants further submitted that actually, the service of the complainants were terminated during pendency of the Reference No. 93 of 2011, and that therefore, breach of Sec. 33 was established before learned Tribunal. Mr. Mankad, learned Counsel further submitted that so far as the claim that the services of the claimants were transferred, it is relevant that said transfer orders came to be issued and served to the complainants few days after the opponent terminated services of the complainants. He would submit that the transfer orders came to be issued by way of afterthought and with an intention to rectify the mistake of terminating the services of the claimants without following prescribed procedure. Learned Counsel for the workmen submitted that the case set up by the petitioner as an afterthought viz. that the contractor terminated/transferred the service of the claimants is unjust and contrary to the evidence on record. According to learned Counsel for the workmen, even the contention that the service of the claimants came to be transferred and not terminated overlooks that said. that the contractor terminated/transferred the service of the claimants is unjust and contrary to the evidence on record. According to learned Counsel for the workmen, even the contention that the service of the claimants came to be transferred and not terminated overlooks that said. Action also tantamount to breach of Sec. 33, inasmuch as the service of the claimants were not transferable, and that therefore, the transfer orders would amount to alteration of service-condition applicable to the workmen immediately before the dispute, and that therefore, even the transfer of service/transfer orders would tantamount to breach of Sec. 33 read with Sec. 9A of the I.D. Act. 6. So far as respondent No. 2-Sigma Enterprises is concerned, Mr. Vasavada, learned Counsel submitted that the notice was not served to the said opponent, and that therefore, the said opponent could not file reply before learned Tribunal and he could not lead any evidence before the learned Labour Court. The said opponent has tried to claim that the complainants had submitted "mass resignation" and accepted the terminal dues/benefits and that therefore, the relationship between the claimants and said opponent came to end on 17-5-2012. 7. Mr. Mankad, learned Counsel for the workmen denied said claim and allegation by respondent No. 2. He submitted that a glance at the document on which said respondent relies i.e. the document dated 17-5-2012 which is alleged to be letter of mass resignation would give out that it is a document which cannot be relied on, inasmuch as on a paper names of 26 workmen are mentioned and against their names, signatures of the workmen have been obtained. If the workmen were to tender resignation, each workmen would tender separate/individual resignation and common resignation by 26 workmen would never be submitted. The genuineness and veracity of the said document is disputed by learned Counsel for the workmen and he submitted that the respondent No. 2 cannot rely upon the said document because it does not form part of the record before learned Labour Court, and that therefore, this Court also should not take into account the said document. 8. The respondent No. 3 has not taken any defence either before learned Tribunal or even before this Court. It is necessary to mention that initially, the process could not be served to the respondent No. 3. 8. The respondent No. 3 has not taken any defence either before learned Tribunal or even before this Court. It is necessary to mention that initially, the process could not be served to the respondent No. 3. Subsequently, the petitioner applied for permission to serve the process by means of substituted service. On the condition that notice be published in newspaper, the permission was granted. Accordingly, the notice to the respondent No. 3 was published in newspaper, and thereafter, the respondent No. 3 entered appearance. However, any defence is not set up by the respondent No. 3. Any reply is not filed. Any contentions against impugned award are not raised by respondent No. 3. 9. Another relevant aspect which is required to be taken note of is the fact that neither respondent No. 2 nor respondent No. 3 have challenged the award dated 10-4-2015 passed in Complaint (I.T.) No. 66 of 2012 to Complaint No. 90 of 2012. More than 3 years have passed since said award came to be passed. However, both the respondents have not challenged the award. Therefore, in present petition, legality of the award is examined only qua the dairy and in light of the contentions raised by the dairy. 10. I have considered rival submissions, material available on record and impugned award. 11. In light of facts and circumstances involved in the case and in light of the stand taken - rather in light of admission of important fact - by the dairy in its reply filed before learned Tribunal, the conclusion by learned Labour Court about breach of Sec. 33 does not warrant interference, of course, for different reasons i.e. for reasons other than the reasons recorded by the Tribunal. However, other conclusion recorded and final directions issued by learned Tribunal are not sustainable and they deserve to be set aside and matter deserves to be remanded to learned Tribunal so far as appropriate relief and final direction are concerned. 12. The facts and reasons which lead this Court to said decision are mentioned below: 13. It is necessary to mention that learned Senior Counsel for the petitioner submitted that the petitioner is actually and essentially aggrieved by final directions because though it is not the employer of the complainants, the dairy is directed to comply the award if the respondent No. 2 and/or No. 3 fail to comply the award. 14. It is necessary to mention that learned Senior Counsel for the petitioner submitted that the petitioner is actually and essentially aggrieved by final directions because though it is not the employer of the complainants, the dairy is directed to comply the award if the respondent No. 2 and/or No. 3 fail to comply the award. 14. It is relevant to note that the complainants approached the learned Tribunal on 29-12-2012 and they filed the complaints with the allegation that their services came to be terminated on 29-12-2012 during pendency of Reference No. 93 of 2011. In said Reference No. 93 of 2011, complainants were interested and concerned persons inasmuch as they had raised demand for regularization of their service and that demand was under consideration. 15. On the other hand, in its reply, the dairy opposed the complaints on the ground that the complainants are employees of contractor and it is not the employer of complainants and the complainants are contract labourers i.e. employees of contractor. Therefore, complaints cannot be maintained against it. Actually, the demand in reference case (viz. regularization of their service also suggested that a third party (contractor) was on the scene and the issue was a contentious issue. Under the circumstances, before passing final direction which would create obligation against the dairy viz. the obligation to reinstate the claimants in service or to restore the position which prevailed before 29-12-2012, the learned Tribunal should have and ought to have decided (a) as to whether the dairy is and can be considered "employer" of the claimants; and (b) whether any direction against the dairy can be passed in the complaints alleging breach of Sec. 33. 16. Having set up such defence, the dairy also claimed that the service of the claimants have not been terminated, but their services have been transferred. The dairy also claimed that the contractor transferred the service of the claimants and not the dairy. 16.1. The said reply and assertion by the dairy was not and is not disputed and denied by the contractors. Actually, the dairy has placed on record a copy of one such order (transferring the claimant). 16.2. Before this Court, the dairy repeated and emphasized said fact and submission. 16.3. The said reply and said submission by the dairy is a clear and final admission of an important fact viz. Actually, the dairy has placed on record a copy of one such order (transferring the claimant). 16.2. Before this Court, the dairy repeated and emphasized said fact and submission. 16.3. The said reply and said submission by the dairy is a clear and final admission of an important fact viz. services of the claimants were transferred and that the said transfer were made during pendency of dispute (Reference No. 93 of 2012). 17. The said fact is not in dispute. Even dairy does not dispute. Actually, the dairy has clearly and expressly mentioned said fact in its reply (written statement) before the Tribunal and during the cross-examination of the complainants, the dairy even extracted reply/confirmation (of said fact) from the complainants and before this Court, the dairy even emphasized said deposition of the claimant. 17.1. It is the dairy which mentioned and admitted said fact in its reply. The said acceptance and admission and its reply and the contentions raised by it which has brought in picture subject of transfer of service of the complainants. In this view of the matter, the dairy cannot disown and/or cannot wriggle out of its own admission. 18. 17.1. It is the dairy which mentioned and admitted said fact in its reply. The said acceptance and admission and its reply and the contentions raised by it which has brought in picture subject of transfer of service of the complainants. In this view of the matter, the dairy cannot disown and/or cannot wriggle out of its own admission. 18. Thus, the pleadings by contesting parties (memo of complaints and the reply by dairy) and the defence setup by the dairy and rival contentions gave rise to several questions e.g. (i) whether the dairy can be said to be employer of the claimants; (ii) whether the dairy had passed any order against the claimants i.e. either terminating their service or even transferring their service; (iii) if any order is not passed by the dairy, then can it be said that the dairy contravened Sec. 33; (iv) if the dairy had not passed any order and/or had not taken any action and/or not issued any instruction against the claimants, then whether it can be said that the dairy contravened Sec. 33 and whether any directions can be passed against the dairy; (v) even if it is believed that the service of the claimants have not been terminated, but service of claimants have been transferred to other established, whether the said transfer order would amount to alteration in service condition; (vi) whether the service of the claimants are transferable i.e. whether there is specific condition in the appointment orders of the claimants or under applicable Rules that their service would be transferable to any place, and (vii) whether the transfer orders were issued in breach of any service conditions mentioned in the appointment order; (viii) if there is no specific condition (about transfer) under applicable Rules or in the appointment order, then whether the service of the complainants can be transferred, and in such case, whether transfer would amount to alteration in service condition applicable to the claimants immediately before the date on which the dispute arose; and (ix) whether transfer was an implied service condition; and whether, in respect of Class IV employee (in a private organization i.e. non-Government employee), transfer can be an implied condition of service. 18.1. 18.1. The learned Tribunal has passed impugned award and issued direction against petitioner-dairy, without addressing any of the said issues, though they are material and relevant for deciding as to whether the opponents contravened Sec. 33 or not and whether any direction can be passed against the dairy or not. 19. As mentioned above, any directions against the dairy could not have been passed by learned Tribunal before it reached to the conclusion and recorded specific finding of fact that the dairy is the "employer" of the complainants, inasmuch as under Sec. 33A of I.D. Act a complaint (for breach of Sec. 33 by employer) would lie and can be maintained only against employer. 19.1. Section 33A read with Sec. 33 of the I.D. Act postulate that a complaint under said provision would be maintainable (i) only against an "employer" and (ii) when "employer" contravenes Sec. 33 during pendency of dispute before Labour Court or Tribunal or Conciliation Officer or an Arbitrator. 19.2. Further, for maintainability of complaints under Sec. 33A the complainant must show (i) contravention of Sec. 33; and (ii) such contravention is committed by employees. Thus, for maintaining the complaint, the complainant must show that alleged breach is committed by "employer". 19.3. Therefore, when complaint under Sec. 33 is filed before learned Tribunal or learned Labour Court and the opponent sets up defence that it is not an employer of the complainant and relationship of employer and employee does not exist between the complainant and said opponent, then learned Labour Court or learned Tribunal would be obliged to first decide as to whether the opponent is/can be considered and held employer of the complainant or not. In present case, learned Tribunal did not address and did not decide said issue i.e. whether the dairy is/can be considered "employer" of the complainant. The Tribunal has not recorded any specific and clear finding with regard to dairy's objection. 20. So far as contravention of Sec. 33 is concerned, it has emerged from the award and from pleadings that the dairy itself claimed and admitted that service of the claimants were transferred. 20.1. Neither before learned Tribunal nor even in present petition, the respondent No. 3 ever disputed the said reply and/or the fact mentioned by the dairy. Therefore, the dairy and concerned contractor cannot wriggle out of said reply-defence. 20.2. 20.1. Neither before learned Tribunal nor even in present petition, the respondent No. 3 ever disputed the said reply and/or the fact mentioned by the dairy. Therefore, the dairy and concerned contractor cannot wriggle out of said reply-defence. 20.2. Therefore, the question would arise as to whether the service of the complainants could have been transferred and whether said transfer orders constitute or tantamount to "alteration of service-condition". 21. The answer to said question depends on and can emerge from applicable Rules or from the terms and conditions of service mentioned in the orders of appointment. 22. So as to examine the allegation about breach of Sec. 33 of I.D. Act, in the case where service of employees are transferred, the service condition which existed immediately before the employer allegedly contravened Sec. 33 must be taken into account. 22.1. If, on relevant date the service of the complainants were not transferable either by virtue of provision in the Rules or by way of service-condition in the appointment order, then the order transferring service of the complainant would amount to alteration of service condition and thereby violation of Sec. 33. 23. In present case, (i) it is not the case of the dairy or any contractor that such provision - power is available under the Rules; and (ii) it has also emerged that neither the dairy nor any contractor had ever issued any appointment orders (to the complainants) which prescribed transfer as service-condition. 24. Therefore, in present case, on one hand, there is admission of vital fact (by the dairy) that the service of the claimants were "transferred" and on the other hand, it is undisputed position that there was no Rule/provision (or service condition) which made the service transferable and/or which would empower the employer to transfer the service of the claimants. 25. Therefore, in present case, on one hand, there is admission of vital fact (by the dairy) that the service of the claimants were "transferred" and on the other hand, it is undisputed position that there was no Rule/provision (or service condition) which made the service transferable and/or which would empower the employer to transfer the service of the claimants. 25. In this view of the matter, breach of Sec. 33 stand established in light of undisputed - rather admitted - fact - situation because:- (a) in case of claimants "transfer" (of service) was not an "existing/applicable" service-condition before commencement of dispute; (b) neither appointment orders nor the Rules (applicable to the claimants) provide for/prescribe such condition or contain any provision which make their service transferable; (c) despite such undisputed position, the service of the claimants (according to dairy's case) came to be transferred; (d) this would amount to breach of and/or alteration of service condition - applicable before commencement of the dispute (i.e. the Reference case); (e) such transfer/alteration came to be made (i) during pendency of Reference/dispute; and (ii) without permission (or even approval) from/by the Tribunal. 25.1. Thus, the reply filed by the dairy and the case setup and emphasized by the dairy (not denied or disputed by the contractor either before the Tribunal or even before this Court) establishes contravention of Sec. 33 of I.D. Act. 25.2. The learned Tribunal reached and recorded, though on different ground, same conclusion. 25.3. When the conclusion is right, irrespective of the ground, this Court would be reluctant to interfere with and upset such final decision. The process of reconsideration would only result in consuming Court's more time and more expenses for the workmen. Since relevant facts are not in dispute, the factum of transfer is admitted and since permission/approval was not taken, the pleadings and evidence, consequently, the conclusion would be the same. 26. In this situation and when it has emerged and it is established-in light of and on account of clear and repeated admission by the petitioner-dairy (which is not disputed - denied by the contractor) that Sec. 33 has been contravened, this Court would be loathe to impose re-trial at the cost of trial Court's time. 26.1. 26. In this situation and when it has emerged and it is established-in light of and on account of clear and repeated admission by the petitioner-dairy (which is not disputed - denied by the contractor) that Sec. 33 has been contravened, this Court would be loathe to impose re-trial at the cost of trial Court's time. 26.1. When final conclusion by the trial Court is correct and legal as well as sustainable, in law and on facts, then this Court would refuse to upset such conclusion merely on the premise that the reason or ground considered by trial Court is justified on conjecture and surmises. 27. In present case, there are two more features viz. (a) the conclusion (about breach of Sec. 33) is derived from and established on account of and in light of admission of important and relevant fact; and (b) the said conclusion is severable from other findings and conclusion. 28. In this view of the matter, it is not necessary to disturb the Tribunal's conclusion that in present case Sec. 33 is contravened. 29. When the opponents failed to establish that service of the claimants were transferable, then the action of transferring the service of the claimants (according to the admission by the dairy and contractor) from petitioner-dairy to other establishment tantamount to breach of Sec. 33 inasmuch as it would amount to alteration in service condition during pendency of dispute and such alteration could not have been committed without following procedure prescribed under Sec. 33 of the I.D. Act. Therefore, said conclusion need not be toppled. 30. However, the final direction passed by the Tribunal are not sustainable. 31. When the learned Tribunal did not determine as to whether the dairy can be said to be "employer" of the complainants, the direction against the dairy ought not have been and could not have been passed. 32. For issuing impugned direction, it was necessary (for learned Tribunal) to decide (i) as to whether the complainants can be said to be employees of the dairy; and (ii) whether employer and employee relationship existed between the complainants and the dairy; and (iii) whether the dairy had issued/passed the orders of transfer in capacity as employer. 33. In light of facts of present case coupled with the requirements for invoking Sec. 33, learned Court ought to have addressed and decided above-mentioned issues. 33.1. 33. In light of facts of present case coupled with the requirements for invoking Sec. 33, learned Court ought to have addressed and decided above-mentioned issues. 33.1. Unfortunately, the Tribunal did not even address and did not decide said issues and without deciding said issue the Tribunal passed final direction against the dairy. 33.2. Therefore, the directions which are challenged by the petitioner cannot be sustained. 34. Though, the conclusion that in present case Sec. 33 is contravened is correct and justified, impugned direction against the dairy is not sustainable inasmuch as before holding the petitioner dairy responsible for restoration of the position (which prevailed before the contravention) learned Tribunal ought to have addressed above-mentioned issues and without recording specific findings and conclusion the Tribunal should not and could not have passed the direction against the dairy and could not have imposed the obligation on the dairy in absence of specific finding about "employer". Since, the Tribunal passed impugned direction without considering above discussed aspects and without examining whether the dairy can be considered "employer" of the complainants, the case and the decision deserves reconsideration by the learned Tribunal. 35. At this stage, it is necessary to deal with one submission by learned Senior Counsel for the petitioner-dairy. Learned Senior Counsel submitted that the reference is already decided and disposed of, and that therefore, the complaints, even otherwise, would not be maintainable and they are rendered in-fructuous. 35.1. The said submission is not sustainable and cannot be maintained. On this count, it is necessary to note that a complaint filed under Sec. 33A of the Act with the allegation that employer contravened Sec. 33 is to be decided on the basis of the findings and conclusion as to whether Sec. 33 is contravened or not. For determining as to whether Sec. 33 is contravened or not, the relevant date would be the date on which breach occurred and whether the dispute was pending on the date of alleged breach or not. 35.2. The pendency of the dispute should be on the date when impugned action is taken by the employer. 35.3. Therefore, relevant date for deciding the complaint would be the date on which contravention of Sec. 33 allegedly occurred. 35.2. The pendency of the dispute should be on the date when impugned action is taken by the employer. 35.3. Therefore, relevant date for deciding the complaint would be the date on which contravention of Sec. 33 allegedly occurred. If learned Labour Court or learned Tribunal finds that Sec. 33 is "contravened, then the Consequences would follow (as explained in the decision in case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd.). 35.4. The pendency of reference is relevant to determine whether the employer contravened Sec. 33 during pendency of reference or not. If such contravention is shown by the complainant, then the complaint proceedings shall progress independently and will not be dependent on pendency of reference or even final result and outcome of reference. This is so because the object of Sec. 33 is to ensure that merely because workman raised demand or dispute, he/they may not be victimized or harassed by the employer and the reference should progress without the workman being victimized for raising dispute. Of course, the Court/Tribunal is conferred the power to lift such ban in specified circumstances. 35.5. Under the circumstances, disposal of reference (in which the complaint is filed) before the complaint could be decided, would not render the complaint infructuous. If contravention of Sec. 33 was actually committed and if the complainant could establish such contravention, then the complaint would survive, irrespective of disposal of reference, since the complainant is independent and substantive proceedings. Therefore, said contention is not sustainable and consequently, it is rejected. 36. In the result, following order is passed: (A) Impugned award so far as final directions which impose and cast obligation on the dairy are set aside, however, with clarification that the conclusion with regard to breach of Sec. 33 (that in present case, Sec. 33 is contravened) is not disturbed. (B) The learned Tribunal shall, therefore, re-examine the case so as to pass appropriate final order and directions after addressing the issues and aspects mentioned and discussed hereinabove, more particularly, the issue : whether the dairy can be considered "employer" of the claimants. (C) In light of facts and circumstances of the case, more particularly the fact that the dispute arose as back as in 2012, it would be appropriate that learned Tribunal shall expedite the hearing and proceedings related to said complainants and render fresh decision as expeditiously as possible and preferably within six months. (C) In light of facts and circumstances of the case, more particularly the fact that the dispute arose as back as in 2012, it would be appropriate that learned Tribunal shall expedite the hearing and proceedings related to said complainants and render fresh decision as expeditiously as possible and preferably within six months. With aforesaid observations, direction and clarification, present petitions are disposed of. Orders accordingly.