Dear seniors, Please enlighten on section 33(3) of id act pertaining to action taken against protected workmen.
From India, Madras
3From India, Madras
Dear Madan,
Sec.33 of the Industrial Disputes Act,1947 prescribes that under certain circumstances specified therein, conditions of service, etc, should remain unchanged.
The circumstances can be pendency of any industrial dispute of an industrial establishment in the form of
(a) conciliation proceedings before a conciliation officer or a board of conciliation
(b) any proceedings before an Arbitrator
(c) any proceedings before a Labor Court or Tribunal or National Tribunal.
The conditions of service required to be unchanged are:
(a) any matter connected with the dispute pending aforesaid OR
(b) punishment of any workman for any misconduct connected with the dipute pending aforesaid by way of discharge or dismissal.
However, the above restrictions on the ordinary right of the employer have to operate subject to the provisions of the subsections of (1), (2) and (3) of Section 33.
Sec.33(1) postulates the situations of change in service conditions or punishment by way of discharge or dismissal of any workman connected with the issue of the pending dispute. In such a situation, it is mandatory for the employer to obtain the prior permission of the authority before whom the dispute is pending prior to effect the change prejudice to the workmen or prior to awarding the punishment by way of discharge or dismissal.
Section 33(2) deals with the situation of the change in service conditions and punishment of discharge or dismissal of any workman for any misconduct NOT CONNECTED with the pending dispute. Here the employer is empowered to effect the change or punish but he has to obtain approval of the forum simultaneously.
Section 33(3) deals with the specific case of protected workman in such matters. The explanation to ss(3) defines who a protected workman is. Here, the employer should obtain prior permission from the forum before effecting any change in the service conditions to the prejudice of any protected workman or before discharging or dismissing him for ANY misconduct.
Thus, section 33(3) imposes a strict ban on the normal right of an employer to effect any change in the existing service conditions pertaining to protected workmen as well as to punish them with discharge or dismissal for ANY misconduct.
It is to be noted that this ban would be effective only so long as the pendency of such disputes before the forums mentioned.
It should also be equally borne in mind that the entire section 33 in general and ss3 of sec.33 in particular revolves around the lofty objective of prevention of the possible act of victimization by the employer.
From India, Salem
Sec.33 of the Industrial Disputes Act,1947 prescribes that under certain circumstances specified therein, conditions of service, etc, should remain unchanged.
The circumstances can be pendency of any industrial dispute of an industrial establishment in the form of
(a) conciliation proceedings before a conciliation officer or a board of conciliation
(b) any proceedings before an Arbitrator
(c) any proceedings before a Labor Court or Tribunal or National Tribunal.
The conditions of service required to be unchanged are:
(a) any matter connected with the dispute pending aforesaid OR
(b) punishment of any workman for any misconduct connected with the dipute pending aforesaid by way of discharge or dismissal.
However, the above restrictions on the ordinary right of the employer have to operate subject to the provisions of the subsections of (1), (2) and (3) of Section 33.
Sec.33(1) postulates the situations of change in service conditions or punishment by way of discharge or dismissal of any workman connected with the issue of the pending dispute. In such a situation, it is mandatory for the employer to obtain the prior permission of the authority before whom the dispute is pending prior to effect the change prejudice to the workmen or prior to awarding the punishment by way of discharge or dismissal.
Section 33(2) deals with the situation of the change in service conditions and punishment of discharge or dismissal of any workman for any misconduct NOT CONNECTED with the pending dispute. Here the employer is empowered to effect the change or punish but he has to obtain approval of the forum simultaneously.
Section 33(3) deals with the specific case of protected workman in such matters. The explanation to ss(3) defines who a protected workman is. Here, the employer should obtain prior permission from the forum before effecting any change in the service conditions to the prejudice of any protected workman or before discharging or dismissing him for ANY misconduct.
Thus, section 33(3) imposes a strict ban on the normal right of an employer to effect any change in the existing service conditions pertaining to protected workmen as well as to punish them with discharge or dismissal for ANY misconduct.
It is to be noted that this ban would be effective only so long as the pendency of such disputes before the forums mentioned.
It should also be equally borne in mind that the entire section 33 in general and ss3 of sec.33 in particular revolves around the lofty objective of prevention of the possible act of victimization by the employer.
From India, Salem
What a fitting and knowledge reply from our erudite member of this forum. Dear Sir, We are all amazed to be in this elite forum where a leader like you supports and train us in all aspects of HR and Legal avenues. Thanks for your great support and knowledge sharing among our team members.
From India, New Delhi
From India, New Delhi
In addition to Valued discussion of Sri Umakanthanji, an article on related subject induced below;
SOME REFLECTIONS IN INDUSTRIAL JURISPRUDENCE – INDUSTRIAL DISPUTES ACT, 1947 : THE CONCEPT OF PROTECTED WORKMAN DECODED: A LEGAL PERSPECTIVE
A case-law pertaining to Section 33 (3) of Industrial Disputes Act, 1947 came to my notice. The esteemed readers are aware that Section 33 of the Industrial Disputes Act, 1947 deals with “conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings”. Sub-section (3) of Section 33 deals with “protected workman”. Since case-laws under Section 33 are rare viz. pertaining to “protected workmen” I thought it appropriate to pen an article. Moreover the judgment has been delivered by a learned Division Bench of the Hon’ble High Court of Kerala in Writ Appeal No. 1171 of 2010.
Before writing the article, I think it would be in fairness and fitness of the subject to reproduce Section 33 of Industrial Disputes Act, 1947 and the relevant rules so that the esteemed readers would find it easy to assimilate the subject. Section 33 of the Act reads as follows:
“Conditions of service, etc. to remain unchanged under certain circumstances.
(1) During pendency of any conciliation proceedings before a conciliation officer or a Board or of any proceeding before [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 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 proceedings; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save as 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 when there are no 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, 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 sub-section (2) no employer shall during the pendency of any such proceeding in respect of any 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 proceeding; 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 purpose 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 recognized as such in accordance with rules made in this behalf.
(4) In every establishment, the number of workmen to be recognized as protected workmen for the purpose of sub-section (3) shall be one percent of the total number of workman employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for this 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 manner in which the workmen may be chosen and recognized as protected workmen.
(5) where an employer makes an application to a conciliation officer, board, an arbitrator, a Labour Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action take by him, the authority concerned shall without delay here 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 consider it necessary or expedient so to do, it may for reason to be recorded in writing extend such period by such further period as it may think fit.
Provided further that no proceeding before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being contemplated.
Rule 61 of Industrial Disputes (Central) Rules, 1957: This rule has got 4 sub-rules which read as follows:
(1) Every registered trade union connected with an industrial establishment, to which the Act applies, shall communicate to the employer before the 30th April every year, the names and addresses of such of the officers of the union who are employed in that establishment and who, in the opinion of the union should be recognized “protected workmen”. Any change in the incumbency of any such officer shall be communicated to the employer by the union within fifteen days of such change.
(2) The employer shall, subject to Section 33, sub-section (4), recognize such workmen to be “protected workmen” for the purpose of sub-section (3) of the said section and communicate to the union, in writing, within fifteen days of the receipt of the names and addresses under sub-rule (1), the list of workmen recognized as protected workmen for the period of twelve months from the date of such communication.
(3) Where the total member of names received by the employer under sub-rule (1) exceeds the maximum number of protected workmen, admissible for the establishment, under Section 33, sub-section (4), the employer shall recognize as protected workmen only such maximum number of workmen.
Provided that where there is more than one registered trade union in the establishment, the maximum number shall be so distributed by the employer among the unions that the numbers of recognized protected workmen in individual union bear roughly the same proportion to one another as the membership figures of the unions. The employer shall in that case intimate in writing to the President or the Secretary of the union the number of protected workmen allotted to it.
Provided further that where the number of protected workmen allotted to a union under this sub-rule falls short of the number of officers of the union seeking protection, the union shall be entitled to select the officers to be recognized as protected workmen. Such selection shall be made by the union and communicated to the employer within five days of the receipt of the employer’s letter.
(4) When a dispute arises between an employer and any registered trade union in any manner connected with the recognition of ‘protected workmen’ under this rule, the dispute shall be referred to the any Regional Labour Commissioner (Central) or Assistant Labour Commissioner (Central) concerned, whose decision shall be final.”
THE CASE -LAW :
HLL LIFECARE LTD. vrs. HINDUSTAN LATEX LABOUR UNION (AITUC) [2011 (1) LLN 782 (DB-Kerala): = 2011 (128) FLR 471 = www.indiankanoon.org/doc/6202702] DoJ : 9th MARCH 2011
FACTS OF THE CASE
One, workman, named Shri Ajay K Prakash of HLL Lifecare Ltd was proceeded against disciplinary proceedings three times and was issued with charge-sheets [Exts. P1, P2 and P3]. In the enquiry, conducted pursuant to Ext. P1-charge sheet, he was found guilty. However, during the pendency of Exts. P2 and P3 charges levelled again him, the union nominated the delinquent employee’s name under Rule 61 (1) of the Industrial Disputes (Central) Rules, 1957 for recognizing him as a protected workman.
Now the question before us is :
(i) Whether a workers’ Union has got an absolute right to nominate any person/employee to be recognized as a protected workman irrespective of his credential?
(ii) Whether the Management is bound to accept the nomination of a charge-sheeted employee and recognize him/her as protected workman?
(iii) Whether the Management has got a right to reject the nomination of a charge sheeted employee/workman to be recognized as a protected workman?
WHAT DID THE MANAGEMENT DO?
The Management of HLL Lifecare Ltd rejected the nomination of Shri Ajay K Prakash to be recognized as a protected workman.
Following the rejection of the nomination of Shri Ajay K Prakash, the Union approached the Assistant Labour Commissioner through an application under sub-rule (4) of Rule 61. The Assistant Labour Commissioner directed the employer to declare the nominee, Shri Ajay K Prakash as a protected workman.
WRIT PETITION FILED BY THE MANAGEMENT
The Management of HLL Lifecare Ltd, having felt aggrieved by the order of the Assistant Labour Commissioner, filed a Writ Petition before the High Court of Kerala. A learned Single Judge, who heard the petition, held that Rule 61 (2) makes it mandatory for the Management to declare the nominee of the Union as a “protected workman” and they have no right to reject the same.
WRIT APPEAL FILED BY THE MANAGEMENT
Following the dismissal of the Writ Petition by the learned Single Judge, the Management of HLL Lifecare Ltd preferred Writ Appeal No. 1171 of 2010 which was heard by a learned Division Bench.
THE ADJUDICATION PROCEEDINGS
The learned Division Bench of the Hon’ble High Court made a reference to Section 33 of the Industrial Disputes Act, 1947 and also Rule 61 of the Industrial Disputes (Central) Rules 1957. I have already extracted the same hereinbefore.
Interpretation of Section 33
The learned Division Bench proceeded to interpret Section 33 of the Act and stated that what Section 33 (1) of the Industrial Disputes Act says being that the pendency of any proceedings before the authorities mentioned therein in respect of an industrial dispute, the employer shall not alter the service conditions to the prejudice of the workman concerned or discharge, dismiss or punish any workman concerned in the dispute without the express permission in writing of the authority before which proceeding is pending. The principles recognized under this provision is something like subjudice which prohibits an employer from changing conditions of service of employees involved in the dispute to their prejudice or take any action to punish or remove them from the service without the permission of the authority which considers the dispute. However, sub-section (2) which is in the form of exception says that employer is free to change the conditions of service of employees in the establishment, if the standing orders or terms of contract of employment permit the same. Similarly under clause (b) of sub-section (2) of Section 33 for any misconduct not connected with the pending dispute, employees can be punished with even dismissal. Sub-section (3) of Section 33 gives certain protection to “protected workman” and this provision is in the form of exception to sub-section (2) of Section 33 which gives authority to the Management to take disciplinary action, or alter condition of service against employees on matters unconnected with the pending dispute, if the standing orders or terms of contract of employment permit the same. The exception in sub-section (3) is to provide immunity to protected workmen from any action during the pendency of the dispute, even if the Management is otherwise entitled to take action under the standing orders or under the terms of employment. What is specifically prohibited under the sub-section is punishment in the form of discharge, dismissal or otherwise of protected workman except with the express permission in writng granted by the authority before which proceeding is pending.
THE BROAD QUESTION FOR CONSIDERATION
“WHETHER AN UNION IS ENTITLED TO NOMINATE A WORKMAN, TO BE RECOGNISED AS A PROTECTED WORKMAN, AGAINST WHOM DISCIPLINARY PROCEEDING/S IS/ARE PENDING, BASICALLY TO GIVE HIM/HER IMMUNITY FROM PUNISHMENT, UNDER SECTION 33 (3) WITHOUT PRIOR APPROVAL OF THE AUTHORITY BEFORE WHICH PROCEEDING IS PENDING?”
Contentions Raised on Behalf of the Employer :
The following contentions were advanced on behalf of the employer, M/s HLL Lifecare Ltd :
(i) that the union’s object is only to protect the delinquent employee from serious punishment without prior permission from the authority concerned for this purpose.
(ii) that the workman’s name has been nominated to declare him as a protected workman under Rule 61 (1), by the union.
(iii) that the union has nominated only the delinquent employee, namely, Shri Ajay K Prakash for recognition as protected workman and no other office-bearer is nominated by the union for recognition as protected workman even though they could send upto 5 names for protection in terms of Section 33 (4) of the Act.
(iv) that the learned Single Judge noticed that Rule 61 (2) makes it mandatory for the employer to recognize the list of such of the workman nominated by the union under Rule 61 (1) for recognition as protected workman and the only authority for the management is to limit the number of workmen in terms of Section 33 (4) of the Act.
VIEWS OF THE LEARNED DIVISION BENCH ON THE INTERPRETATION MADE BY THE LEARNED SINGLE JUDGE:
The learned Division Bench stated that it is unable to accept the interpretation placed by the learned Single Judge on Rule 61 (1) and (2) of the Industrial Dispute (Central) Rules, 1957. No doubt the selection of office-bearers of the union for declaration by the Management as protected workman is within the exclusive discretion of the union. In other words, it is up to the union to select their office-bearers and forward the names of such of the office-bearers whom the union considers eligible and desires to declare as protected workman. However, the learned bench observed that in its view, the Management is not bound to approve the list of names forwarded by the union for recognition as protected workman. 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 nomination of such office-bearer [Italicised for emphasis]. If the Management declines to recognize any office-bearers as protected workman it is for the union to either contest the same by raising 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.
On the Management’s right to accept the nominations made by the union
The learned Division Bench further stated that it does not think that there is any need for it to consider the circumstances which justify the Management to reject the nomination of any office-bearer of the union as protected workman.
The learned Bench also made it clear that 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.
Immunity to delinquents?
The Hon’ble High Court also examined the aspect of giving immunity to delinquent employees under the guise of “protected workman”. It stated that the Union certainly cannot exercise their power under Rule 61 (1) to give immunity to an employee against whom disciplinary proceedings initiated by the Management is pending by nominating his/her name for recognition as protected workman.
THE STATUS OF THE INSTANT CASE
The Hon’ble High Court noticed that in the instant case, admittedly during the pendency of Exts. P2 and P3 (Two Charge Sheets) the union nominated the name of the delinquent employee for recognition as protected workman. The Hon’ble High Court told that in its view the Management rightly declined the nomination as protected workman and the decision of the Assistant Labour Commissioner vide Ext. P8 overruling the decision of the Management is unsustainable (Italicised by me for emphasis). It further added that though disciplinary action suffered may not disqualify an office-bearer of the union from being recognized as a protected workman, the position is different so far as an employee against whom disciplinary action initiated by the Management is pending. 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. Counsel for the union placed reliance on the following case-laws :
(i) R Balasubramanian vrs. Carborandum Unvl. [1976 (1) LLN 350 (Guj) : 1978-I-LLJ-432]
(ii) Maharashtra State Road Transport Corporation Ltd vrs. Conciliation Officer [1993 (2) LLN 869 : 1994 –II-LLJ-41 : 1994 (68) FLR 275]
The Hon’ble High Court found that the above cases are not relevant to the case in hand. It also stated that the view taken by the learned Single Judge that the Management has no discretion in regard to recognition of an office-bearer of a union as protected workman is incorrect. The learned Division Bench stated that the Management for good and valid reasons rejected the nomination for recognition furnished by the union. The order issued by the Assistant Labour Commissioner directing the Management as a protected workman was found unsustainable.
THE VERDICT
The judgment and order of the learned Single Judge dismissing the Writ Petition of the Management got vacated and the appeal filed by the Management was allowed. It was also ordered that the disciplinary proceedings against the delinquent workman would continue in accordance with law.
THE ASSUMPTIONS
From the foregoing discussions the following assumptions could be deduced :
01. Right to nominate any office-bearer by an Union for the purpose of recognition as protected workman is neither an absolute right nor an unfettered right.
02. A charge-sheeted worker’s nomination, as a protected workman, by an Union, can be rejected by the Management.
03. Nomination of a workman with dubious character or doubtful integrity is nothing but brazen attempt to derive undue advantage of the provisions of law.
04. The Authorities, to whom cases of dubious employees are referred, must be careful and judicious while exercising their power. They should not form an opinion that the worker/union is always legally right.
05. Trade union rights can be exercised with reasonable restrictions. A trade union is not an extra constitutional authority. It should not be forgotton that organizations do not need trade unions; trade unions need organizations to survive. If there is no industry there is no trade union.
06. Trade union members should think that at first instance they are workers of the organization and then trade union leaders. They are paid by the industry to do industry’s work, not for trade union activities.
07. Recently it has been noticed in certain organizations that some trade unions are showing untoward behaviour by resorting to poster wars.
No trade union or its leader has got a right to criticize the employer as anti labour or Mazdoor Virodhi in posters pasted at organization’s entrance. This is insubordination amounting to a serious misconduct and unbecoming of an employee for which the concerned persons can be even dismissed from services for which there is no legal protection. If any individual is not satisfied with the service conditions, he/she can leave the organization and seek employment elsewhere with better or best service condition. No employer holds back any employee from leaving. But public criticism of bread giver is certainly a case of administrative promiscuity and deserves to be dealt with heavy hands.
PS: This article was penned by me when I was working in Naval Dockyard, Mumbai.I had dealt with issues pertaining to protected workmen and had quoted this decision when some charge sheeted employees wanted to be declared as protected workmen.
[Article by Sri Ajaya Kumar Samantaray, Dy Director Labour welfare at Ministry of Labour and Employment, Government of India]
From India, Mumbai
SOME REFLECTIONS IN INDUSTRIAL JURISPRUDENCE – INDUSTRIAL DISPUTES ACT, 1947 : THE CONCEPT OF PROTECTED WORKMAN DECODED: A LEGAL PERSPECTIVE
A case-law pertaining to Section 33 (3) of Industrial Disputes Act, 1947 came to my notice. The esteemed readers are aware that Section 33 of the Industrial Disputes Act, 1947 deals with “conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings”. Sub-section (3) of Section 33 deals with “protected workman”. Since case-laws under Section 33 are rare viz. pertaining to “protected workmen” I thought it appropriate to pen an article. Moreover the judgment has been delivered by a learned Division Bench of the Hon’ble High Court of Kerala in Writ Appeal No. 1171 of 2010.
Before writing the article, I think it would be in fairness and fitness of the subject to reproduce Section 33 of Industrial Disputes Act, 1947 and the relevant rules so that the esteemed readers would find it easy to assimilate the subject. Section 33 of the Act reads as follows:
“Conditions of service, etc. to remain unchanged under certain circumstances.
(1) During pendency of any conciliation proceedings before a conciliation officer or a Board or of any proceeding before [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 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 proceedings; or
(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save as 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 when there are no 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, 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 sub-section (2) no employer shall during the pendency of any such proceeding in respect of any 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 proceeding; 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 purpose 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 recognized as such in accordance with rules made in this behalf.
(4) In every establishment, the number of workmen to be recognized as protected workmen for the purpose of sub-section (3) shall be one percent of the total number of workman employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for this 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 manner in which the workmen may be chosen and recognized as protected workmen.
(5) where an employer makes an application to a conciliation officer, board, an arbitrator, a Labour Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action take by him, the authority concerned shall without delay here 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 consider it necessary or expedient so to do, it may for reason to be recorded in writing extend such period by such further period as it may think fit.
Provided further that no proceeding before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being contemplated.
Rule 61 of Industrial Disputes (Central) Rules, 1957: This rule has got 4 sub-rules which read as follows:
(1) Every registered trade union connected with an industrial establishment, to which the Act applies, shall communicate to the employer before the 30th April every year, the names and addresses of such of the officers of the union who are employed in that establishment and who, in the opinion of the union should be recognized “protected workmen”. Any change in the incumbency of any such officer shall be communicated to the employer by the union within fifteen days of such change.
(2) The employer shall, subject to Section 33, sub-section (4), recognize such workmen to be “protected workmen” for the purpose of sub-section (3) of the said section and communicate to the union, in writing, within fifteen days of the receipt of the names and addresses under sub-rule (1), the list of workmen recognized as protected workmen for the period of twelve months from the date of such communication.
(3) Where the total member of names received by the employer under sub-rule (1) exceeds the maximum number of protected workmen, admissible for the establishment, under Section 33, sub-section (4), the employer shall recognize as protected workmen only such maximum number of workmen.
Provided that where there is more than one registered trade union in the establishment, the maximum number shall be so distributed by the employer among the unions that the numbers of recognized protected workmen in individual union bear roughly the same proportion to one another as the membership figures of the unions. The employer shall in that case intimate in writing to the President or the Secretary of the union the number of protected workmen allotted to it.
Provided further that where the number of protected workmen allotted to a union under this sub-rule falls short of the number of officers of the union seeking protection, the union shall be entitled to select the officers to be recognized as protected workmen. Such selection shall be made by the union and communicated to the employer within five days of the receipt of the employer’s letter.
(4) When a dispute arises between an employer and any registered trade union in any manner connected with the recognition of ‘protected workmen’ under this rule, the dispute shall be referred to the any Regional Labour Commissioner (Central) or Assistant Labour Commissioner (Central) concerned, whose decision shall be final.”
THE CASE -LAW :
HLL LIFECARE LTD. vrs. HINDUSTAN LATEX LABOUR UNION (AITUC) [2011 (1) LLN 782 (DB-Kerala): = 2011 (128) FLR 471 = www.indiankanoon.org/doc/6202702] DoJ : 9th MARCH 2011
FACTS OF THE CASE
One, workman, named Shri Ajay K Prakash of HLL Lifecare Ltd was proceeded against disciplinary proceedings three times and was issued with charge-sheets [Exts. P1, P2 and P3]. In the enquiry, conducted pursuant to Ext. P1-charge sheet, he was found guilty. However, during the pendency of Exts. P2 and P3 charges levelled again him, the union nominated the delinquent employee’s name under Rule 61 (1) of the Industrial Disputes (Central) Rules, 1957 for recognizing him as a protected workman.
Now the question before us is :
(i) Whether a workers’ Union has got an absolute right to nominate any person/employee to be recognized as a protected workman irrespective of his credential?
(ii) Whether the Management is bound to accept the nomination of a charge-sheeted employee and recognize him/her as protected workman?
(iii) Whether the Management has got a right to reject the nomination of a charge sheeted employee/workman to be recognized as a protected workman?
WHAT DID THE MANAGEMENT DO?
The Management of HLL Lifecare Ltd rejected the nomination of Shri Ajay K Prakash to be recognized as a protected workman.
Following the rejection of the nomination of Shri Ajay K Prakash, the Union approached the Assistant Labour Commissioner through an application under sub-rule (4) of Rule 61. The Assistant Labour Commissioner directed the employer to declare the nominee, Shri Ajay K Prakash as a protected workman.
WRIT PETITION FILED BY THE MANAGEMENT
The Management of HLL Lifecare Ltd, having felt aggrieved by the order of the Assistant Labour Commissioner, filed a Writ Petition before the High Court of Kerala. A learned Single Judge, who heard the petition, held that Rule 61 (2) makes it mandatory for the Management to declare the nominee of the Union as a “protected workman” and they have no right to reject the same.
WRIT APPEAL FILED BY THE MANAGEMENT
Following the dismissal of the Writ Petition by the learned Single Judge, the Management of HLL Lifecare Ltd preferred Writ Appeal No. 1171 of 2010 which was heard by a learned Division Bench.
THE ADJUDICATION PROCEEDINGS
The learned Division Bench of the Hon’ble High Court made a reference to Section 33 of the Industrial Disputes Act, 1947 and also Rule 61 of the Industrial Disputes (Central) Rules 1957. I have already extracted the same hereinbefore.
Interpretation of Section 33
The learned Division Bench proceeded to interpret Section 33 of the Act and stated that what Section 33 (1) of the Industrial Disputes Act says being that the pendency of any proceedings before the authorities mentioned therein in respect of an industrial dispute, the employer shall not alter the service conditions to the prejudice of the workman concerned or discharge, dismiss or punish any workman concerned in the dispute without the express permission in writing of the authority before which proceeding is pending. The principles recognized under this provision is something like subjudice which prohibits an employer from changing conditions of service of employees involved in the dispute to their prejudice or take any action to punish or remove them from the service without the permission of the authority which considers the dispute. However, sub-section (2) which is in the form of exception says that employer is free to change the conditions of service of employees in the establishment, if the standing orders or terms of contract of employment permit the same. Similarly under clause (b) of sub-section (2) of Section 33 for any misconduct not connected with the pending dispute, employees can be punished with even dismissal. Sub-section (3) of Section 33 gives certain protection to “protected workman” and this provision is in the form of exception to sub-section (2) of Section 33 which gives authority to the Management to take disciplinary action, or alter condition of service against employees on matters unconnected with the pending dispute, if the standing orders or terms of contract of employment permit the same. The exception in sub-section (3) is to provide immunity to protected workmen from any action during the pendency of the dispute, even if the Management is otherwise entitled to take action under the standing orders or under the terms of employment. What is specifically prohibited under the sub-section is punishment in the form of discharge, dismissal or otherwise of protected workman except with the express permission in writng granted by the authority before which proceeding is pending.
THE BROAD QUESTION FOR CONSIDERATION
“WHETHER AN UNION IS ENTITLED TO NOMINATE A WORKMAN, TO BE RECOGNISED AS A PROTECTED WORKMAN, AGAINST WHOM DISCIPLINARY PROCEEDING/S IS/ARE PENDING, BASICALLY TO GIVE HIM/HER IMMUNITY FROM PUNISHMENT, UNDER SECTION 33 (3) WITHOUT PRIOR APPROVAL OF THE AUTHORITY BEFORE WHICH PROCEEDING IS PENDING?”
Contentions Raised on Behalf of the Employer :
The following contentions were advanced on behalf of the employer, M/s HLL Lifecare Ltd :
(i) that the union’s object is only to protect the delinquent employee from serious punishment without prior permission from the authority concerned for this purpose.
(ii) that the workman’s name has been nominated to declare him as a protected workman under Rule 61 (1), by the union.
(iii) that the union has nominated only the delinquent employee, namely, Shri Ajay K Prakash for recognition as protected workman and no other office-bearer is nominated by the union for recognition as protected workman even though they could send upto 5 names for protection in terms of Section 33 (4) of the Act.
(iv) that the learned Single Judge noticed that Rule 61 (2) makes it mandatory for the employer to recognize the list of such of the workman nominated by the union under Rule 61 (1) for recognition as protected workman and the only authority for the management is to limit the number of workmen in terms of Section 33 (4) of the Act.
VIEWS OF THE LEARNED DIVISION BENCH ON THE INTERPRETATION MADE BY THE LEARNED SINGLE JUDGE:
The learned Division Bench stated that it is unable to accept the interpretation placed by the learned Single Judge on Rule 61 (1) and (2) of the Industrial Dispute (Central) Rules, 1957. No doubt the selection of office-bearers of the union for declaration by the Management as protected workman is within the exclusive discretion of the union. In other words, it is up to the union to select their office-bearers and forward the names of such of the office-bearers whom the union considers eligible and desires to declare as protected workman. However, the learned bench observed that in its view, the Management is not bound to approve the list of names forwarded by the union for recognition as protected workman. 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 nomination of such office-bearer [Italicised for emphasis]. If the Management declines to recognize any office-bearers as protected workman it is for the union to either contest the same by raising 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.
On the Management’s right to accept the nominations made by the union
The learned Division Bench further stated that it does not think that there is any need for it to consider the circumstances which justify the Management to reject the nomination of any office-bearer of the union as protected workman.
The learned Bench also made it clear that 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.
Immunity to delinquents?
The Hon’ble High Court also examined the aspect of giving immunity to delinquent employees under the guise of “protected workman”. It stated that the Union certainly cannot exercise their power under Rule 61 (1) to give immunity to an employee against whom disciplinary proceedings initiated by the Management is pending by nominating his/her name for recognition as protected workman.
THE STATUS OF THE INSTANT CASE
The Hon’ble High Court noticed that in the instant case, admittedly during the pendency of Exts. P2 and P3 (Two Charge Sheets) the union nominated the name of the delinquent employee for recognition as protected workman. The Hon’ble High Court told that in its view the Management rightly declined the nomination as protected workman and the decision of the Assistant Labour Commissioner vide Ext. P8 overruling the decision of the Management is unsustainable (Italicised by me for emphasis). It further added that though disciplinary action suffered may not disqualify an office-bearer of the union from being recognized as a protected workman, the position is different so far as an employee against whom disciplinary action initiated by the Management is pending. 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. Counsel for the union placed reliance on the following case-laws :
(i) R Balasubramanian vrs. Carborandum Unvl. [1976 (1) LLN 350 (Guj) : 1978-I-LLJ-432]
(ii) Maharashtra State Road Transport Corporation Ltd vrs. Conciliation Officer [1993 (2) LLN 869 : 1994 –II-LLJ-41 : 1994 (68) FLR 275]
The Hon’ble High Court found that the above cases are not relevant to the case in hand. It also stated that the view taken by the learned Single Judge that the Management has no discretion in regard to recognition of an office-bearer of a union as protected workman is incorrect. The learned Division Bench stated that the Management for good and valid reasons rejected the nomination for recognition furnished by the union. The order issued by the Assistant Labour Commissioner directing the Management as a protected workman was found unsustainable.
THE VERDICT
The judgment and order of the learned Single Judge dismissing the Writ Petition of the Management got vacated and the appeal filed by the Management was allowed. It was also ordered that the disciplinary proceedings against the delinquent workman would continue in accordance with law.
THE ASSUMPTIONS
From the foregoing discussions the following assumptions could be deduced :
01. Right to nominate any office-bearer by an Union for the purpose of recognition as protected workman is neither an absolute right nor an unfettered right.
02. A charge-sheeted worker’s nomination, as a protected workman, by an Union, can be rejected by the Management.
03. Nomination of a workman with dubious character or doubtful integrity is nothing but brazen attempt to derive undue advantage of the provisions of law.
04. The Authorities, to whom cases of dubious employees are referred, must be careful and judicious while exercising their power. They should not form an opinion that the worker/union is always legally right.
05. Trade union rights can be exercised with reasonable restrictions. A trade union is not an extra constitutional authority. It should not be forgotton that organizations do not need trade unions; trade unions need organizations to survive. If there is no industry there is no trade union.
06. Trade union members should think that at first instance they are workers of the organization and then trade union leaders. They are paid by the industry to do industry’s work, not for trade union activities.
07. Recently it has been noticed in certain organizations that some trade unions are showing untoward behaviour by resorting to poster wars.
No trade union or its leader has got a right to criticize the employer as anti labour or Mazdoor Virodhi in posters pasted at organization’s entrance. This is insubordination amounting to a serious misconduct and unbecoming of an employee for which the concerned persons can be even dismissed from services for which there is no legal protection. If any individual is not satisfied with the service conditions, he/she can leave the organization and seek employment elsewhere with better or best service condition. No employer holds back any employee from leaving. But public criticism of bread giver is certainly a case of administrative promiscuity and deserves to be dealt with heavy hands.
PS: This article was penned by me when I was working in Naval Dockyard, Mumbai.I had dealt with issues pertaining to protected workmen and had quoted this decision when some charge sheeted employees wanted to be declared as protected workmen.
[Article by Sri Ajaya Kumar Samantaray, Dy Director Labour welfare at Ministry of Labour and Employment, Government of India]
From India, Mumbai
I fully endorse the views of Mr.Prabhat. The entire provisions dealing with conferment of the status of protected workman to office-bearers of any registered Trade union u/s 33 of the Industrial Disputes Act, 1947, if analyzed critically, do not seem to vest with the trade union any absolute right to nominate any such person or to bind the employer to accept the nomination as it is.
During my tenure as an ACL in 1997, a prominent South Indian Staff Union of Tea Plantations raised the case of rejection of a Field Officer as protected workman u/r 65 of the TN ID Rules before me.
After holding a full-fledged enquiry by permitting the disputants to let in oral evidence, file documents and advance their arguments both oral and written, I rejected the union's claim on the ground of the Field Officer being not a workman u/s 2(s) of the IDA,1947 by virtue of the supervisory capacity of the job and the salary given at that time. Though no appeal was preferred agaist the orders, thereafter, the union stopped nominating field officers as protected workmen.
As categorically held by the Division Bench of the hon'ble Kerala High Court, section 33 (3) is a preemptive provision against the employer's possible vindictive action against a union-office bearer for his lawful trade union activities and as such it cannot be used as a ruse to safeguard a workman facing disciplinary action.
From India, Salem
During my tenure as an ACL in 1997, a prominent South Indian Staff Union of Tea Plantations raised the case of rejection of a Field Officer as protected workman u/r 65 of the TN ID Rules before me.
After holding a full-fledged enquiry by permitting the disputants to let in oral evidence, file documents and advance their arguments both oral and written, I rejected the union's claim on the ground of the Field Officer being not a workman u/s 2(s) of the IDA,1947 by virtue of the supervisory capacity of the job and the salary given at that time. Though no appeal was preferred agaist the orders, thereafter, the union stopped nominating field officers as protected workmen.
As categorically held by the Division Bench of the hon'ble Kerala High Court, section 33 (3) is a preemptive provision against the employer's possible vindictive action against a union-office bearer for his lawful trade union activities and as such it cannot be used as a ruse to safeguard a workman facing disciplinary action.
From India, Salem
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