Section 33(3) of the Industrial Disputes Act provides certain privileges for a Protected Workman in an establishment. The proviso provides that during pendency of any proceeding in respect of an industrial dispute, the employer is barred from altering the service condition of the 'Protected Workman' to his prejudice and/or dismiss or discharge him from the service without the prior approval of the concerned Authority before whom the proceeding is pending.
The explanation to this proviso explains who is a Protected Workman in the organization and it reads as follows:
"Explanation. -- For the purposes of this sub-section, 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."
Rule 61(1) of Industrial Disputes (Central) Rules, 1957, provides that every registered trade union connected with an industrial establishment shall communicate to the employer before the 30th April every year, the names and addresses of the officers of the union who are employed in that establishment and who should be recognised as protected workmen. Rule 61(2) makes it obligatory on the part of employer to recognise such number of workers as provided u/s 33(4) of the Industrial Disputes Act, 1947, as 'protected' for a period of 12 months, within fifteen days of receipt of the proposal from the union. Almost in the same sprit the respective state rules have incorporated such provisions in their respective rules.
Further, Section 33(4) of the Industrial Disputes Act, provides the number of Protected Workman an establishment can have and how this status will be distributed in a multi union scenario in an establishment. The section reads as follows:
"In every establishment, the number of workmen to be recognised as protected workmen for the purposes of sub-section (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."
Hence, a plain reading of the sub-section would entail that the number of workmen to be recognised as Protected Workmen 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. Therefore where the total number of names received by the employer exceeds the maximum number of protected workmen, the employer shall recognise only such maximum number of workmen as "protected" as enshrined under this sub-section of the Act.
If in the organization there are more than one registered trade unions in the establishment, the quantum of protected workmen shall be distributed among the unions in proportion to the membership of the respective unions. In case the number of protected workmen allotted to the union is less than that proposed by the union it is incumbent on the employer to communicate to the Union and accordingly the union will have to select from the proposed list the names of such persons who should be recognised as protected workmen and intimate the names to the employer within the stipulated time as prescribed.
It may be noteworthy to mention that the aforesaid provisions on Protected Workman, has been retained in similar form and tenor in section 90 of the draft Industrial Labour Code on Industrial Relation Bill, 2015. Hence, even if the said code becomes law and as a consequence of it the Industrial Disputes Act stands repealed the law related to Protected Workman shall remain unaltered.
Recognition of a Protected Workman is not automatic. It requires a positive action from Employer for recognition. In P.H. Kalyani vs M/S. Air France Calcutta (1963 AIR 1756 = 1964 SCR (2) 104) the Supreme Court was of the opinion that a positive action on part of the Employer is required for recognition of a Protected Workman. The apex Court further opined that at the first place the question whether a particular workman is a protected workman or not is a question of fact, and the finding of the Labour Court on such a question will generally be accepted by this Court as conclusive. A mere fact that a letter was written to the Manager of the respondent company by the Vice - President of the union in which the name of the appellant was mentioned as a joint secretary of the union and the manager had been requested to recognise him along with others mentioned in the letter as Protected Workmen would not be enough. The company had replied to that letter pointing out certain legal defects therein and there was no evidence to show what happened thereafter. Hence, the Court opined that in the absence of any evidence as to recognition the appellant cannot be held to be a Protected Workman. In the case between Canara Workshops vs Presiding Officer (1986 ILLJ 181 Kant) before Karnataka High Court the P.H. Kalyani case (Supra) was relied upon by the Petitioner. On the contra the respondent relied upon a Division Bench case of the Gujarat High Court R. Balasubramanian v. Carborumdum Universal Ltd. [1978-I L.L.J. 432] wherein it was held by their lordship that as there is one union in the concerned industry there is no grounds on which the employer can refuse to recognise the workmen named in the communication of the Union as protected workmen and therefore even in absence of a positive act on the part of the employer the Petitioner concerned in that case could claim the status of the protected workmen. Disagreeing with the opinion of the Gujarat High Court and relying upon the P.H. Kalyani case (supra) the Karnataka High court opined as follows:
"With great respect to their Lordships, I find it difficult to agree. In my opinion, both having due regard to the clear and unambiguous wording of Explanation to S. 33(3) of the Act and of Rule 63 of the rules as also the pronouncement of the Supreme Court, in the absence of proof of recognition by the employer of the concerned workman as Protected Workman, the workman concerned cannot claim to be a Protected Workman. The communication to the employer from the trade union seeking recognition in respect of its office bearers named in its communication, the status of protected workmen and a written reply by the employer according recognition is must......"
A similar view as that of Karnataka High Court had been opined by the Bombay High Court in Air India Ltd. vs Indian Pilots Guild And Anr. (2005 (1) MhLj 850) whereby the Court observed:
"To answer the question whether on failure there is a deemed recognition it must be borne in mind that deemed recognition can only be there if there is a specific provision in the Act or if otherwise on a reading of the provisions it can be implied that there is deemed recognition. Section 33(4) does not provide so. Under the rules what is set out is that the Union must intimate to the employer, which of the workmen are to be conferred the status of protected workmen, and the employer then, within 15 days of the receipt of the letter, should communicate to the Union the list of workmen recognized, to be protected workmen. A reading of the rule, in my opinion, does not lead to the inference that there is a deeming provision by which workmen can be treated as duly protected merely on the failure by the employer to communicate its decision to the Union. Secondly if the Act itself has not so provided then a subordinate legislation cannot so provide. Apart from that power has been conferred on an authority to decide the dispute. The dispute is not only a positive act on the part of the management to grant recognition but will also include a failure to communicate their decision or no decision itself."
Hence, from the above discussion above as it appears the law as regard to recognition of Protected Workman (exception being only R. Balasubramanian case) needs a positive action from Employer intimating in writing to the Union as who are the persons recognized by the Employer as Protected Workman. In case of any non - communication from the end of the employer within the prescribed time the Union will be at liberty to raise a dispute before the appropriate Authority as prescribed under the rules. Similarly a dispute can be raised by the Union if the Management does not agree with the list of the Union.
However, while deciding on the list forwarded by the Union the Management cannot act as per its whims and fancy. The Delhi High Court in case of Sunder Lal Jain Hospital Karmachari Union vs Govt. Of Delhi (2002 (92) FLR 566) was very categorical in opining that the actions of the Management which subverts the intent of legislature is not sustainable.
Non recognition of the Union cannot be a ground for denying status as Protected Workman. In the Air India case (supra) it was opined by the Bombay High Court that the act or State rule makes no distinction, between recognized and unrecognized union. It was held neither Rule 61 nor Section 33 requires that it is only recognized union in an establishment which is required to be protected. The language used in Section 33 is an application by a registered trade union. In other words all that is required is that the Union must be registered.
The employer is within its right to seek information from the Union as to when the election was held, how the election was held and who were the members of the union and elected body in order to ascertain the factual status of the persons, who had sought status as protected workmen. (Ref Voltas Limited vs. Voltas Employees' Union And Anr (2007) IILLJ 604 Del). The employer is also within its right not to recognize an office bearer of the Union facing disciplinary actions. The division Bench of Kerala High court in HLL Lifecare Ltd vs. Hindustan Latex Labour (W.A 1171 of 2010 Source, Indian Kannon) inter-alia held that it is up to the management to consider whether any of the office - bearers nominated by the union is undesirable or ineligible for recognition and if they find so for valid reasons, they are free to reject the nomination of such office - bearer. If the management declines to recognise any office - bearer as protected workman, it is for the Union to either contest the same by raising a dispute before the Regional Labour Commissioner or Assistant Labour Commissioner as provided under sub-rule (4) of Rule 61 of the Rules whose decision shall be final or to send the name of another office - bearer of the Union for recognition as protected workman by the management in the place of the rejected candidate. The management is entitled to decline recognition to person nominated by the union for recognition as protected workman if any disciplinary proceeding is pending against such workman.
Before we conclude we shall refer to the case of Sunder Lal Jain Hospital Karmachari Union vs Govt. Of Delhi (2002 (92) FLR 566) of the Delhi High court which has set out the broad parameters and principles for recognition of a Protected Workman in an establishment. In succinct it is reproduced herein below:
(1) To qualify for special protection the person should belong to a registered organisation/union connected with the establishment.
(2) The persons concerned must also be a member of the executive or other office bearer of such registered union.
(3) The Union should be an entity connected with the establishment.
(4) Union Should genuinely represents the workforce and farming out of Protected Workmen status is to be governed by Section 33(4) of the Act. Strict adherence to the section 33(4) is required so as to ensure that distribution is not made in favour of Union which a friendly Union of the Management or a stooge or dummy.
(5) The Union should nominate persons with a view to protect the interests of the workforce. The objective should not be to shield the nominee from punitive action for a misdemeanour already committed by him, unrelated to the labour movement/cause.
(6) The Union should communicate to the establishment the particulars of the persons who are nominated by the Union for such status within the month of April for protection in the immediately following year. A change in the incumbency must be communicated within fifteen days of such change. [Rule 61(1)].
(7) The employer must conform to section 33(4) and must convey its recognition within fifteen days of the receipt of the names proposed by the Union for the period between April and March. [Rule 61(2)]. Where no response is made by the Management within this period, its approval should be deemed.
(8) If a dispute arises in regard to the status of 'protected workmen' the matter should be referred for the decision of any Regional or Assistant Labour Commissioner (Central) or any other Officer to whom these powers are delegated.
(9) Objections recorded by the Management to the proposed names, the list forwarded by the Union would not be binding on the Management. The ratio of Hon'ble Supreme Court in P.H. Kalyani v. Air France, Calcutta, would apply.
(10) The Management is not allowed to reject a nomination with oblique motives as this will than defeat the entire purpose of granting protection to a trade - unionist.