When we learn Industrial Disputes Act, 1947, there are some terms and definitions which require a lot of explanations. Even the courts have tried to interpret these terms in different situations in different ways. Hence an ordinary student will be confused in understanding these terms. The term 'Protected workmen' is one among those most confusing and much interpreted one.
Section 33 (3) reads as follows:
"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 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 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.
How many protected workmen?
As per Section 33 (4) of the Industrial Disputes Act, 1947, 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.
Where the total number of names received by the employer exceeds the maximum number of protected workmen, admissible for the establishment, u/s 33(4) of the Act, the employer shall recognise only such maximum number of workmen as “protected”.
Where there are more than one registered trade unions in the establishment, the maximum number of protected workmen shall be distributed among the unions in such a way that each union shall have representation as protected workmen in proportion to the membership of the unions. If the union is informed that the number of protected workmen allotted to the union is less than that proposed by the union; after submission of the list, 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 five days.
Rights of Protected Workmen
Section 33 (3) of Industrial Disputes Act, 1947, provides that during the pendency of any conciliation procedure 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, the employer should not initiate 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.
If any employer wants to take action against a protected workman during the pendency of a conciliation proceeding, before the Conciliation Officer, Board, Arbitrators, Labour Court, Tribunal or National Tribunal, he should get express permission from the conciliation Officer, Labour Court or Tribunal, as the case may be, by applying in form J.
The Kerala High Court in an interesting dispute wherein a Workman who was already facing Disciplinary Action and was facing some proceedings 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 [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”.
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.”
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.
In such cases the management should inform its intention to decline the name of a particular worker in the list, within 15 days, failing which it can be presumed that the management has no objection in the proposal furnished by the union.
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