Section 33 of the Industrial Disputes Act dealing with the conditions of service, etc., to remain unchanged under certain circumstances during pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before an arbitrator or]Labour Court or Tribunal or National Tribunal in respect of an industrial dispute prohibits he employer from taking any action against a protected workman in sub-section (3) therein which reds thus:
"(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." The explanation thereunder further clarifies that “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.”
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.
Rule 62 of the Central Rules to Industrial Disputes Act defines a ‘protected workman’ thus:
"62. (1) Protected Workmen: (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 recognised as '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 S. 33, sub-s. (4) recognise such workmen to be 'protected workmen' for the purposes of sub-s. (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 workmen recognised as protected workmen.
(3) 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 recognised protected workmen in individual unions 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 recognised 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 matter connected with the recognition of 'protected workmen' under this rule, the dispute shall be referred to the Conciliation Officer concerned, whose decision thereon shall be final."
According to sub-rule (1) of Rule 62, every trade union is required to send the names of office bearers of that union in respect of whom the trade union seeks recognition from the employer as protected workmen before 30th April of the year concerned. After the receipt of such requisition from the trade union or trade unions concerned, the employer is under a duty to recognise the office bearers so named as protected workmen, if the persons in respect of whom a trade union seeks recognition are office bearers of that trade union and their number is within the limit permitted under sub-s. (4) of S. 33 of the Act. Rule 62(2) requires the employer to send a communication to that effect to the trade union concerned within fifteen days from the date of receipt of communication from the trade union under Rule 62(1). It is only in cases where the management finds that the trade union concerned is seeking recognition for more number of office bearers than permissible, under S. 33(4) of the Act, the employer will have the liberty of recognising only the permitted number as protected workmen. Even so, the management is required to send a communication to the trade union within 15 days.
Recognition of a Protected Workman is not automatic. It requires a positive action from Employer for recognition [H. Kalyani vs M/S. Air France Calcutta (1963 AIR 1756 = 1964 SCR (2) 104] In this case the appellant was 'Charged with gross dereliction of duty. The appellant in answer to the charge sheet admitted the mistakes and contended that he was over-worked and that it was the duty of others also to check the load sheet and balance chart prepared by him. Enquiry was held by the Station Manager to whom the Appellant objected on the ground of bias. On the findings of the enquiry the appellant was dismissed by the Regional Representative of the respondent
Company and was given one month's wages and was informed that the approval of the action taken was being sought from the Industrial Tribunal before whom some industrial disputes were pending. The order of dismissal was communicated to the appellant on May 30, and the application for approval was made the same day. An application under s. 33A was made on June 3, 1960, by the appellant challenging the order of dismissal. The appellant objected to the maintainability of the application for approval but theTribunal accorded approval to the action taken by the respondent and dismissed the application of the appellant under s. 33-A, on appeal by special leave.
The application for approval was in accordance with the proviso of s. 33 and properly made; further that in the absence of any positive action amounting to the recognition of the appellant as a protected person by the respondent (and the appellant had produced no such evidence) he could not be held to be a protected workman for dismissing whom the previous sanction was necessary under s. 33 (3).
Assuming that the Station Manager who held the enquiry was biased though the order of dismissal was passed by the Regional Representative against whom no such allegation was made, the Tribunal was entitled to go into the question whether the dismissal was justified on the evidence laid before it.
The dismissal of the appellant did not amount to victimization
Even if the domestic enquiry was defective provided that there is a prima facie case for dismissal and a bonafide conclusion is reached that the employee is guilty of misconduct, and if the labor Court in dealing with the application under s. 33 (2) and after considering for itself the evidence adduced before it gives its approval it would relate back to when the employer came to the conclusion after the enquiry that the dismissal is a proper punishment.
In the case on hand, the Supreme Court was of the opinion that positive action on part of the Employer is required for recognition of a Protected Workman. The question of 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 in the absence of any evidence as to recognition, the appellant cannot be held to be a Protected Workman.
In a subsequent case before the Karnataka High Court in Canara Workshops vs Presiding Officer (1986 ILLJ 181 Kant) , differing with the ruling of Gujarat High Court in R. Balasubramanian v. Carborumdum Universal Ltd. [1978-I L.L.J. 432] the Karnataka High court held that
“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 to recognition is must"
Whereas the Gujarat High Court had held that held that as there was only one union in the concerned industry there was no grounds on which the employer could refuse to recognize the workmen named in the communication of the Union as protected workmen. Thus even in the absence of a positive act on the part of the employer the Petitioner concerned in the case could claim the status of the protected workmen.
The Supreme Court in the aforementioned case further held that
“It may be seen that sub-s. (3) of S. 33 is intended to give complete protection to the workmen who are recognised as protected workmen against any arbitrary action by way of terminating their services either for misconduct or otherwise. The support of sub-s. (4) of S. 33 is that in respect of an industrial establishment, the minimum number of protected workmen would be five and that the number of protected workmen in respect of an industrial establishment having more than five hundred employees would be at the rate of one percent. of the workmen subject to a maximum of 100. Further, according to the said provision when there are more than one trade union in respect of workmen of an industrial establishment, the number of office-bearers of each of these unions, who could be recognised as protected workmen would depend upon the number of workmen, who are members of each of the trade unions. In other words, the number of protected workmen in respect of each of the trade union would have to be in proportion to the membership of the trade union. According to the above provision, the recognition of protected workmen has to be done in the manner prescribed under the Rules. (Rule 62 of the Rules is the relevant provision. It reads -
“In the present case admittedly no communication was sent by the petitioner recognizing the 2nd respondent as protected workman. Indeed the plea of the petitioner is it had not received any communication from the trade union in terms of Rule 62(1) and, therefore, the question of its recognizing the 2nd respondent as protected workman did not arise. Therefore the question for consideration is whether even in the absence of communication by the management recognizing or accepting the list of protected workmen, any workman can claim to be protected workman.”
In another case the Bombay High Court in Air India Ltd. vs Indian Pilots Guild and Anr. (2005 (1) MhLj 850) observed that:
“In the instant case, the respondent No. 1 had made a specific application that two of its members should be granted the status of protected workmen. The employer in turn by way of its reply which has been treated to be the written statement had merely raised objections which have been noted earlier and which may be again set out, viz., that there were claims from both Indian Pilots Guild as well as Air India Line Pilots' Association with regard to the representation of pilots working for AIR INDIA. That it is not the practice of the Management to grant the status of protected workmen to the office bearers of an unrecognized Union in Air India. The Indian Pilots Guild was a de-recognized Union and as such the status of protected workmen could not be granted to office bearers of Indian Pilots Guild. Insofar as this contention is concerned for the purpose of recognition, as held earlier neither Rule 61 nor Section 33 requires that it is only recognized union in an establishment that 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. Admittedly in the instant case the Union is registered. The objection therefore by the petitioners herein that they do not give recognition of protection to members of the unrecognized union would be clearly contrary to the purport and intent of the Act and the rules made thereunder. The Act makes no distinction, between recognized and unrecognized union. The grant of status of protected workmen is not dependent on whether management has recognized a Union or not in the absence of any specific provision in the Act and the rules. On the contrary, the recognition is to a registered Union. The section must be read in the spirit in which it has been enacted. The section recognizes that in an industry there is a possibility of several unions, some of which may be recognized, some may be unrecognized for reasons or known.”
"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 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."
‘It is then submitted that the order of 2nd respondent clearly discloses an error of law apparent on the face of the record. The finding that there was a mandatory obligation under Rule 61(2) to respond within fifteen days and on failure to do so after that period it will be deemed that the workmen named in the application began to enjoy a protected status is contrary to law. In support of the first proposition learned counsel relied on the judgment in Grindlays Bank Ltd. v. The Central Government Industrial Tribunal and Ors., as also the judgment of the Apex Court in Satnam Verma v. Union of India, In support of the second contention that there could not be deemed recognition after the expiry of the period, reliance has been placed on the judgment in the case of Union of India v. Rajasthan Anushakti Karmachari Union, Rawatbhata and Anr., 1977 Lab.I.C. 155, wherein what was in issue was making the application for recognition beyond the time set out therein. The learned Judge of the Rajasthan High Court held that the rule was not mandatory but directory as it was merely a procedural requirement. Reliance was then placed in the case between Canara Workshops v. Presiding Officer, 1986(1) LLJ 181. A learned Judge of the Karnataka High Court has taken a view that on failure by the Management to sent a communication of acceptance of a list of protected workmen within 15 days from the date of, receipt of the list from a Trade-Union. The Trade Union concerned can raise a dispute before the Conciliation Officer under Rule 62(4). It is therefore submitted that there is no deemed fiction of recognition and a dispute must be raised by the Union representing the workmen. The learned counsel also placed reliance on the decision of the Apex Court in P.H. Kalyani v. Air France, Calcutta, wherein the Labour Court had held that in the matter of recognition of protected workmen there must be some positive action on the part of the employer in regard to the recognition of an employee as a protected workmen before he could claim to be a protected workmen for the purpose of Section 33. The Apex Court noted that nothing had been shown which was contrary to the view taken by the Labour Court. It may be noted that the learned Judge of the Karnataka High Court in Canara Workshop (supra) has relied on the observation of the Apex Court in Kalyani's case in support of view he was taking. Reliance is also placed on the judgment of the Apex Court in the case of Supreme Court Bar Association v. Union of India and Anr., to contend that if there is no jurisdiction, then the authority cannot assume jurisdiction’. Air India Ltd. vs Indian Pilots Guild and Anr. (2005 (1) MhLj 850)
Thus the law regarding recognition of ‘Protected Workman’ requires s a positive action on the part of an Employer intimating in writing to the Union about the persons recognized by the Employer as Protected Workman. In case the Employer fails to communicate within the prescribed time or the employer does not agree with the list submitted by the Union then the Union may raise a dispute before the appropriate Authority as prescribed under the rules for getting recognition of the protected workmen.