IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 WP(C).No. 28063 of 2009(C) -------------------------- PETITIONER(S): --------------- HLL LIFECARE LTD, HLL BHAVAN, POOJAPPURA, THIRUVANANTHAPURAM.695 012 REP.BY ITS COMPANY SECRETARY AND SENIOR EXECUTIVE DIRECTOR(CAS) BY ADV. SRI.U.K.RAMAKRISHNAN SMT.P.VIJAYAMMA SRI.V.KRISHNA MENON RESPONDENT(S): --------------- 1. HINDUSTAN LATEX LABOUR UNION(AITUC) THIRUVANANTHAPURAM. 695 005, REP.BY ITS PRESIDENT. 2. ASST.LABOUR COMMISSIONER, T.C.25/3554 UPPALAM ROAD(CENTRAL) THIRUVANANTHAPURAM. 695 001. ADV. SRI.K.S.MADHUSOODANAN FOR R1 SRI.T.V.JAYAKUMAR NAMBOODIRI FOR R1 SRI.THUSHAR NIRMAL SARATHY FOR R1 SRI.M.M.VINOD KUMAR FOR R1 SMT.K.M.RAMYA FOR R1 MR.V.MANU, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.28063/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF MEMO OF CHARGES DATED 14/06/2005 LEVELLED AGAINST MR.AJAI K.PRAKASH. P2 : COPY OF MEMO OF CHARGES DATED 26/04/2008 ISSUED TO SHRI.AJAI K.PRAKASH. P3 : COPY OF MEMO OF CHARGES DATED 26/04/2008 ISSUED TO SHRI.AJAI K.PRAKASH. P4 : COPY OF LETTER DATED 16/03/2009 ISSUED BY R1. P5 : COPY OF LETTER DATED 01/04/2009 OF THE PETITIONER. P6 : COPY OF PETITION DATED 15/04/2009 FILED BY R1. P7 : COPY OF OBJECTION DATED 22/05/2009 FILED BY THE PETITIONER. P8 : COPY OF ORDER DATED 10/07/2009 PASSED BY R2. RESPONDENT'S EXHIBITS R1(a) : COPY OF LETTER DATED 13/06/2005. R1(b) : COPY OF CORRECTED NOTICE PUBLISHED IN THE NOTICE BOARD ON 12/02/2008. R1(c) : COPY OF LETTER OF THE MANAGEMENT DATED 25/04/2008. R1(d) : COPY OF REPLY OF AJAI K.PRAKASH DATED 29/04/2008. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.28063 of 2009 --------------------------------- Dated, this the 4th day of March, 2010 J U D G M E N T The petitioner is a Company registered under the Companies Act, 1956 and in so far as this writ petition is concerned, the petitioner has a factory at Peroorkkada in Thiruvananthapuram District, with 889 employees, who are represented by 3 recognized Trade Unions, including the 1st respondent. It is stated that by Ext.P4 dated 16/03/2009 the 1st respondent informed the petitioner that its General Secretary Mr.Ajay K. Prakash is nominated as a protected workman and requested the Management to recognize its nominee as a protected workman. Apparently, for the reason that disciplinary proceedings pursuant to Exts.P1 to P3 memos of charges are pending against the workman, the petitioner issued Ext.P5 reply informing the 1st respondent that its request cannot be accepted. 2. Thereupon, the 1st respondent filed Ext.P6 petition under Rule 61(4) of the Industrial Disputes Act (Central Rules) 1957 WP(C) No.28063/2009 -2- (hereinafter referred to as the Rules for short) before the 2nd respondent, to which Ext.P7 objection was filed by the petitioner. Parties were heard and the 2nd respondent issued Ext.P8 order directing the petitioner to recognize Mr.Ajay K.Prakash, the General Secretary of the 1st respondent Union as a protected workman. It is seeking to quash Ext.P8 that this writ petition has been filed. 3. The contention raised by the petitioner is that the 2nd respondent was exercising quasi judicial powers and that Ext.P8 order was passed without adverting to the contentions raised. It is also contended that the workman nominated as protected workman is facing disciplinary actions and that his nomination was only to avail of the protection as provided under Section 33(4) of the Act and to defeat / delay the pending disciplinary proceedings. It is stated that none of the other recognized Unions have sought status of ‘protected workman’ for their representatives, and that there is no such practice prevailing in the industry. It is stated that if the nomination is accepted, and the workman is recognized as a protected workman, it will adversely affect the industrial peace and harmony now existing in the industry. It is on this basis, the WP(C) No.28063/2009 -3- petitioner seeks to challenge Ext.P8 order. 4. On the otherhand, the learned counsel for the 1st respondent contends that it is the vested right of a recognized Trade Union to nominate its office bearer as a protected workman. According to him, if nomination is made in terms of the statutory provisions, the management is bound to accept the nomination and recognize the person nominated as protected workman except in a case to which Section 33(4) of the Act applies. It is therefore stated that the 2nd respondent was perfectly justified in passing Ext.P8 order. 5. I have considered the submissions made by both sides. 6. Section 33 of the Act provides that the conditions of service, etc., shall remain unchanged under certain circumstances during pendency of proceedings under the Act. In the context of this case, what is relevant to be noticed are the provisions contained in Sections 33(3) and 33(4) of the Industrial Disputes Act (hereinafter referred as the 'Act' for short), which are extracted below for reference. “33 (3). Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such WP(C) No.28063/2009 -4- 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.” 33(4) In every establishment, the number of workman 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.” 7. Rule 61 of the Rules, provide the manner in which recognition is granted to a 'protected workman'. The Rule reads as under:- WP(C) No.28063/2009 -5- “R.61. 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 section 33, sub-section (4), recognise such workmen to be “protected workmen” for the purposes 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 recognised as protected workmen (for the period of twelve months from the date of such communication). (3) Where the total number 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 recognise 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 recognised protected workmen in individual unions bears roughly the same proportion to one another as the membership figure 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 WP(C) No.28063/2009 -6- 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 reognised 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 (any Regional Labour Commissioner (Central) or) Assistant Labour Commissioner (Central) concerned, whose decision thereon shall be final.” 8. Section 33(3) of the Act imposes an unqualified ban on the employer in regard to action by discharging or punishing, the protected workmen, whether by dismissal or otherwise except with the express permission of the Authority before which the proceedings are pending. This Section protects 'protected workmen', and the reason is obvious, that the legislature is anxious to ensure complete protection to protected workmen against discharge or every kind of punishment because of his special position as an Officer of a registered Trade Union, recognized as such in accordance with the Rules made in that behalf. Such protection is accorded for as it is necessary for the growth of Trade WP(C) No.28063/2009 -7- Union movement. 9. Rule 61 shows that every Trade Union connected with the establishment, to which the ID Act applies, has to communicate before 30th April every year, names and addresses of its Officers employed in the establishment, whom it chooses for being recognized as protected workmen. Thereafter, if there is any change in the incumbency of such officer, such change has to be communicated to the employer within 15 days. Therefore, Rule 61 (1) gives the Union freedom to select officers, who shall be recognized as protected workmen, and casts an obligation on the Trade Union that before 30th April, every year, the names and addresses of these officers shall be communicated to the employer. Rule 61(2) then provides a corresponding duty on the employer to recognize such workmen as “protected workmen” for the purpose of Section 33(3) of the Act, subject to the provisions of Section 33(4), and the employer is required to communicate to the Union, in writing, the list of such recognised protected workmen within 15 days of the receipt of the names and addresses from the Trade Union. The Rule further provides that once recognition is so WP(C) No.28063/2009 -8- granted, that will remain valid for a period of 12 months from the date of such communication. 10. If the two Clauses in Rule 61 are read together, it becomes clear that choice of the individual officers, who are to be recognized as protected workmen has been left to the concerned Trade Union as it alone has been given the freedom to determine, which Officer need the statutory protection contemplated under Section 33(3) of the Act. Once the communication of the Union's choice is sent to the employer before 30th April, a mandatory obligation is cast on the employer that it shall recognize the workmen as protected workmen, subject to Section 33(4). In view of the terms of Section 33(3) and Rule 61, the conclusion is irresistible that the employer can refuse to recognize protected workmen only if he can bring the particular case within the grounds provided in Section 33(4), which makes a provision that the recognition shall be of persons who are executive members or other office bearers to the extent of only 1% of the total number of the workmen employed, subject to the minimum of five protected workmen and the maximum number of 100 protected workmen. Another requirement WP(C) No.28063/2009 -9- of Section 33(4) is that when there are various trade unions, the employer has a right of distribution and allotment of the number of protected workmen as provided in Rule 61(3) of the Rules. 11. Therefore, the limited statutory right, which the employer has, is that if the demand made is in excess of the maximum under Rule 61(3), the employer shall recognize only the maximum of such protected number of workmen as provided under Section 33(4). The other right that the employer has is in cases where there are more than one trade union in the establishment, the employer has a right to allot the number of protected workmen in the same proportion as of the membership of the concerned Unions, and he has to intimate in writing to the President or Secretary of each Union as to the number which has been allotted to the particular trade union. Rule 61(3) further provides that if the number of the protected workmen allotted by the employer in such case falls short of the number of the officers of the Union seeking protection, the Union shall be entitled to select its Officers to be recognized as protected workmen, and in that event, such selection by the Union shall be communicated to the employer within 5 days WP(C) No.28063/2009 -10- of receipt of the employer's letter. 12. In this case, admittedly, request has been made by the 1st respondent Union by Ext.P4 dated 16/03/2009, which is before 30th April, provided in Rule 61. None of the grounds available under Section 33(4) or Rule 61(3) are urged by the employer, in which case, the only option available to the employer was to have recognized the workman nominated by the Union as the protected workman. 13. The learned counsel for the petitioner contended that the reason for nominating Shri.Ajay K Prakash himself, was to enable him to claim the benefit of Section 33(3) of the Act. It is pointed out that he is facing 3 disciplinary actions and if he is recognized as protected workman, it will not be possible for the management to impose any punishment except with the permission of the Authority before which disputes are pending. Going by the provisions of the statute, if a workman is recognized as a protected workman, before any punishment is imposed on him, the employer has to obtain express permission from the Authority concerned. Therefore, if protection is granted to Mr.Ajay K Prakash, as apprehended by the WP(C) No.28063/2009 -11- learned counsel for the petitioner, it will become necessary for them to seek permission of the authority seized of the disputes. However, going by the statutory provisions, even if a Union official is facing disciplinary action, that does not render him ineligible for being recognized as a protected workman. If that be so, pendency of the disciplinary action is no reason to decline the request of the Union to recognize the workman in question as a protected workman. In such a situation, even though, I find substance in what the management contends, still having regard to the provisions of the Act, which have been noticed in the earlier paragraphs of this judgment, I cannot accept this contention and invalidate Ext.P8 order. Therefore, I do not find any merit in the writ petition and the writ petition is only to be dismissed and I do so. (ANTONY DOMINIC, JUDGE) jg