During the pendency of any Conciliation Proceedings, the Industrial Disputes Act, 1947, grants special privileges and protection to Office bearers of recognized Unions vide Section 33(3) & (4) of the Act. The Explanation to Section 33(3) defines a Protected Workman as a ‘workman who is a member of the executive or other office bearer of any registered recognized trade union connected with the establishment’. According to Section 33(3) ‘no employer shall take any action against any Protected Workman by altering his service conditions before commencement of conciliation proceedings; or discharge/punish him during pendency of such proceedings’, except with ‘express permission obtained in writing from the authority before which the proceeding is pending’.
From the provisions of Section 33(3), it is manifest that the section imposes an unqualified ban on the employer with respect protected workmen, from discharging or punishing the workman by dismissal or otherwise, whether it be for some misconduct or for any other reasons. The objective behind this blanket protection is that the legislature was anxious, for the healthy growth and development of trade union movement, and it desired to ensure that trade union representatives are protected from all sorts of victimisation and unfair labour practices, during the pendency of conciliation proceedings. It further enables the workmen to have collective bargaining strength to countenance the unwarranted victimisation and give fillip to collective bargaining power with their employers.
Section 33 (4) of the ID Act deals with the number of employees entitled to protection. It says that in every establishment, one percentage of total number of employees with a maximum limit of 100 and minimum limit of 5 employees, are to be granted protection. If there are more than one recognised unions, their entitlement for number of protected workmen are to be decided proportionately by their membership strength. Rule 61 of the Industrial Disputes (Central) Rules, 1957, says that every year before 30th April, every recognized Union shall nominate to their employer, their panel of employees to be recognised as Protected Workman. Any change in their incumbency shall also be communicated to the employer within 15 days.
Therefore, once the union makes its choice of protected workmen and communicates it to the employer by the due date, Rule 66(1) casts a mandatory obligation that the employer shall recognise those workmen as protected workmen. In view of the mandatory language of Rule 66(2), the employer can refuse to recognise the nominated protected workmen, only if the nominated number exceeds the permissible limit, provided under Section 33(4) of the ID Act.
Recently, the Kerala High Court encountered an interesting dispute wherein a Workman who was already facing Disciplinary Action and Chargesheeted for misconduct was nominated by the Union for recognizing as a Protected Workman. The management declined their request, which lead to the Union approaching the Assistiant Labour Commissioner who passed an order in favour of the Union, granting protection to the nominated workman. The management challenged the said order by filing the Writ Petition.
The Single Judge of Kerala High Court [Antony Dominic J, 2010 III LLJ 811] held that “the choice of the individual officers, who are to be recognized as protected workmen has been left to the concerned Trade Union … and once the communication of the Union’s choice is sent to the employer, a mandatory obligation is cast on the employer that it shall recognize the workmen as protected workmen …. even if a Union Official is facing disciplinary action, that does not render him ineligible for being recognised as protected workmen”.
However, the management preferred an intra-court appeal and the Division Bench [Justices C. N. Ramachandran Nair & K. Surendra Mohan, HLL Lifecare Ltd. v. Hindustan Latex Labour Union (AITUC), W.A 1171 of 2010, decided on 3rd November, 2010], reversed the above said judgment of single judge and held that “it is upto 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 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 for recognition as protected workman.. However, management is entitled to decline recognition as protected workmen to a person nominated by the union, if any disciplinary proceeding is pending against such workman. Union certainly cannot exercise their power under Rule 61(1) to give immunity to an employee against whom disciplinary proceedings initiated by the management are pending, by nominating his name for recognition as protected workman.”
Although the decision of Single Judge was in tune with the established principles regarding the concept of protected workmen, the Division Bench of Kerala High Court adopted a more progressive interpretation of the provision, in favour of the employer, in order to prevent expansion of militant trade unionism that has in already disgraced the state of Kerala. Therefore, according the new interpretation, an office bearer of the Union facing disciplinary proceedings is not entitled to be nominated by the Union for recognition as protected workman and the management is absolutely within their powers to decline recognition to such an office-bearer under sub-rule (2) of Rule 61.
This article was written from http://www.mylaw.net