JUDGMENT : 1. Being aggrieved and dissatisfied with award dated 29.2.2009 passed by the Industrial Tribunal, Bhavnagar in Complaint (IT) No.4 of 2004 filed in Reference (IT) No.65 of 2002, by which the workman was ordered to be reinstated as a daily wager “Safai Karmachar” with 50% backwages on the ground that there was a breach of Section 33 of the Industrial Disputes Act, 1948, Lathi Nagar Palika has filed present petition on the ground that the order of reinstatement of a daily wager was not justified; the order of payment of 50% backwages is also not warranted in the facts and circumstances of the case and Reference (IT) No.65 of 2002 had become defunct in view of “No Instruction Purshis” given in 2006, which was not taken into consideration by the Industrial Tribunal, while passing the impugned order. 2. The parties are referred to in this order as “employer” and the “workman” respectively. 3. The employer has contended that the workman was admittedly a daily wager and was never recruited by following the due procedure as prescribed in the Rules. It is also contended that the workman has not worked for 240 days in a year. It is further contended that the Tribunal has committed an obvious error in finding that burden of proof to prove attendance of 240 days is on Nagar Palika. It is also contended that there was no proof that the workman has worked for more than 8 years as daily wager. According to the employer, there was no justification for passing the order of reinstatement and backwages. It is also contended that the Tribunal has misread the judgment of the Full Bench of this Court in the case of Amreli Municipality and judgment of the Apex Court in the case of State of Karnataka v. Uma Devi. 4. It is also contended that the workman was admittedly a daily wager and had no right to propose that there was no question of passing any order of backwages since he has not worked. According to the employer, the services of the workman was brought to an end in the year 2003, whereas the complaint has been made by the workman in the year 2004. According to the employer, the services of the workman was brought to an end in the year 2003, whereas the complaint has been made by the workman in the year 2004. It is also contended that Reference (IT) No.65 of 2002 was never seriously contested right from 2002 and “No Instruction Purshis” was submitted as back as in the year 2006, therefore, there was no justification on the part of the Tribunal to proceed with hearing of the complaint in the year 2009 and to pass impugned order of reinstatement and backwages. On all these grounds, it is contended by the employer that order passed by the Tribunal is erroneous and same deserves to be set aside and, accordingly, prayed to allow present petition by setting aside the impugned order of the Tribunal. 5. Heard Ms.Khyati Hathi, learned advocate for the petitioner- Nagar Palika and Mr.U.T.Mishra, learned advocate for the respondent-workman through video conferencing. 6. Ms.Khyati Hathi, learned advocate for the petitioner submitted that same facts, which are narrated in the petition and has submitted that the complaint was made by the workman in 2004. While inviting the attention of the Court to the written statement filed by the Nagar Palika before the Tribunal in Reference (IT) No.65 of 2002 in Complaint No.4 of 2004, wherein the same grievance has been raised, a specific averment is made that the workman has worked for 173 days only. She has also invited the attention of the Court to the fact, stated in the written statement, that workman has worked for 17 days in August, 20 days in September, 24 days in October and 2 days in November 2003 and, therefore, the version of the workman regarding his termination on 6.8.2003 is not tenable. She has also invited the attention of the Court to the averment made in written statement that the Labour Court or the Tribunal cannot direct the Panchayat or Nagar Palika to make order of permenancy. She has also submitted that demand of workman was premature. While inviting the attention of the Court to the deposition of the workman, she has submitted that the workman has admitted in his cross-examination that he has not filed the case through Union for making him permanent. She has also submitted that demand of workman was premature. While inviting the attention of the Court to the deposition of the workman, she has submitted that the workman has admitted in his cross-examination that he has not filed the case through Union for making him permanent. She has also invited the attention of this Court to “No Instruction Purshis” passed by the representative of the Union dated 27.11.2006, which is at page 32-A of the compilation, wherein it is averred by the representative of the Union that though he has written letters to the workman but he did not reply to them and has not contacted him, therefore, he is not ready to represent him. 6.1 She has also submitted that workman has not worked during the period from 2003 to 2009 and, therefore, there was no question of granting any backwages to him. She has also submitted that before filing present petition, workman has been reinstated in the year 2009. Accordingly to her submission, in reality, main reference has become infrucutous in the year 2009. She has also submitted that there is no breach of Section 33-A of the Industrial Disputes Act since the main petition was pending for adjudication. She has also submitted that if the Court comes to the conclusion that the order of the Tribunal regarding reinstatement of workman is proper then also the order granting backwages upto 50% is on higher side. She has also submitted that the observation made by the Tribunal regarding Section 33-A of the Act is also not proper. She has relied upon decision of this Court in the case of Amreli Municipality v. Gujarat Pradesh Municipal Employees Union reported in 2004 (3) GLR 1841 . 6.2 In view of above, she has prayed to allow present petition. She has alternatively requested that if the Court is not inclined to allow present petition, the matter may be remanded back since the backwages are on higher side. 7. Mr.U.T.Mishra, learned advocate for the respondent workman has supported the impugned order of the Tribunal granting reinstatement as well as payment of 50% backwages. He has submitted that the complaint of the workman was pending before the Tribunal and, therefore, under Section 33-A of the Act, the employer cannot change the service condition of the workman. 7. Mr.U.T.Mishra, learned advocate for the respondent workman has supported the impugned order of the Tribunal granting reinstatement as well as payment of 50% backwages. He has submitted that the complaint of the workman was pending before the Tribunal and, therefore, under Section 33-A of the Act, the employer cannot change the service condition of the workman. He has also supported the reasoning of the Tribunal especially paragraphs 9 and 13 at page 43 and 46 of the compilation. He has also submitted that since the workman has been reinstated in 2009, the issue is only regarding 50% backwages. He has also submitted that this order of 50% backwages is just and proper and this Court may not interfere with the impugned order. He has relied upon the decision in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Limited v. Ramgopal Sharma and Others reported in (2002) 2 SCC 244 . He has prayed to dismiss present petition. 8. Having considered the submissions made by learned advocates for both sides coupled with the material placed on record and the decisions referred to herein above, it appears that there is no dispute regarding relationship of workman and employer between the parties. It also appears that the workman has filed Statement of Demand, which came to be registered as Reference (IT) No.65 of 2002. It also appears from record that representative of the Union has withdrawn his appearance from the matter on 27.11.2006 on the ground that the workman was not responding to his correspondence. It also appears that the complaint under Section 33-A of the Act has been filed by the workman, which came to be registered as Complaint (IT) No.4 of 2004. In the said complaint, a stand taken by the workman is that though his Reference (IT) No.65 of 2002 was pending, his services came to be terminated without any reason on 6.11.2003. It is also the stand of the workman that the employer has not followed any legal procedure as per the provisions of the Act. Thus, the picture emerging from the record is that when the reference was pending the employer has terminated the services of the workman with effect from 6.11.2003 and the complaint under Section 33-A of the Act came to be filed on 20.6.2004. 9. It is worthwhile to refer to Sections 33 and 33-A of the Act, which read as under:- “33. 9. It is worthwhile to refer to Sections 33 and 33-A of the Act, which read as under:- “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 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. 1. Subs. by Act 36 of 1956, s. 21, for s. 33 (w. e. f. 10- 3- 1957 ). 2. Ins. by Act 36 of 1964, s. 18 (w. e. f. 19- 12- 1964 ). 1. Subs. by Act 36 of 1956, s. 21, for s. 33 (w. e. f. 10- 3- 1957 ). 2. Ins. by Act 36 of 1964, s. 18 (w. e. f. 19- 12- 1964 ). (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 1 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, 2 an arbitrator, a] labour Court, Tribunal or National Tribunal under the proviso to subsection (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, 3 within a period of three months from the date of receipt of such application], such order in relation thereto as it deems fit:] 4 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.] 33A. Special provision for adjudication as to whether conditions of service, etc., changed during the pendency of proceedings.-Where an employer contravens the provisions of section 33 during the pendency of proceedings [before a conciliation officer, Board, an arbitrator, 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. In the case of Amreli Municipality v. Gujarat Pradesh Municipal Employees Union reported in 2004 (3) GLR 1841 , it is observed as under:- “We accordingly give following guidelines. (1) If casual workers or daily rated workers are not required by the Local bodies and whose services are likely to be terminated, they should be relieved on the principle of "last come, first go". In the event of filling up the posts in future, those who are eligible and qualified from and amongst the relieved workmen shall be preferred by waiving the age limit. In the event of filling up the posts in future, those who are eligible and qualified from and amongst the relieved workmen shall be preferred by waiving the age limit. (2) If the workmen who have continued for years as temporary employees, in the event of their termination, the authorities will see that no unqualified person is appointed in their place. (3) The question of regularisation can also be considered by the authorities before terminating services provided the workers are eligible on the sanctioned posts. (4) If the posts are not sanctioned, the authorities may take such steps which are necessary in accordance with the provisions of law/ rules/ circulars within the budgetary provisions.” 10.1 In the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Limited v. Ramgopal Sharma and Others reported in (2002) 2 SCC 244 , it is held as under:- B. Labour Law – Industrial Disputes Act, 1947 – Ss.33 (2) (b) proviso, 33-A, 10 (1) (d) and 31 (1) – Requirements of proviso to S.33 (2) (b) – Nature of – Held, mandatory – Hence, failure to make application for approval of the order of discharge or dismissal or withdrawal of such application after making it, held, renders the order of discharge or dismissal void and inoperative – Punjab Beverages (P) Ltd. case (1978) 2 SCC 144 taking a contrary view and holding that the remedy of the employee in such a case lay in Ss. 31, 33-A and 10(1)(d), overruled – Interpretation of Statutes – Construction in favour of advancement of the object of the statute – Applied – Anomaly or absurdity or hardship or redundancy or repugnancy – Rule against redundancy applied. 11. In view of decision of the Apex Court in the case of Jaipur Zila Sahkari Bhoomi Vikas Bank Limited v. Ramgopal Sharma (supra), especially paragraph 15, when there is a reference pending, the employer cannot resort to change of service condition of the workman or cannot discharge or terminate the services of the workman without written permission of the Labour Court or the Industrial Court. Admittedly, in the present case, no such action has been taken out by the present petitioner. Therefore, the observations and the reasoning given by the Labour Court granting reinstatement of the workman cannot be faulted with. The decision of the Labour Court in granting relief of reinstatement is proper one. Admittedly, in the present case, no such action has been taken out by the present petitioner. Therefore, the observations and the reasoning given by the Labour Court granting reinstatement of the workman cannot be faulted with. The decision of the Labour Court in granting relief of reinstatement is proper one. However, on perusal of the material, it clearly appears that the Labour Court has committed serious error of facts and law in granting backwages of 50% as the reference was filed by the workman in 2002 and they have not produced any evidence regarding non-availability of the work to the workman during pedency of both the proceedings. When there is no legal evidence produced by the workman, either oral or documentary, regarding his unemployment during the pedency of reference or complaint, the backwages upto 50% is on higher side. However, at the same time, the employer has resorted to action of termination of service of the workman without obtaining any sanction from the Labour Court/Tribunal, which is not in consonance with Section 33-A of the Act and the employer cannot take a stand that the workman was getting some sort of employment during the pendency of the matters till termination of service of the workman. In the present case, considering the fact that original reference is filed on 12.8.2002 and service of the workman was terminated on 6.11.2003 and the Labour Court has passed the order on 27.2.2009, backwages upto 25% could be just and equitable. Therefore, considering the facts and circumstances of the case, this Court is of the considered opinion that the Labour Court has not committed any error of law and facts in passing the order of reinstatement of the workman as a daily wager “Sweeper”. However, it has committed serious error on facts and law in granting backwages of 50%. Therefore, the impugned award is required to be modified to that extent. 12. Accordingly, present petition is partly allowed. The impugned award dated 27.2.2009 passed by the Industrial Tribunal, Bhavnagar, in Complaint (IT) No.4 of 2004 in Reference (IT) No.65 of 2002 is modified to the extent that instead of payment of 50% backwages, the employer shall pay backwages of 25% from the date of termination of the workman till 6.11.2003, when he was reinstated. Order of reinstatement is hereby confirmed. Rule is made absolute to the above extent. No order as to costs.