1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICGTION WRIT PETITION (L) NO. 2603 OF 2004 Air India Limited ) A Government Body incorporated) under the Indian Companies ) Act, 1956, having its Office at ) Air India Building, Backbay ) Reclamation, Nariman Point, ) Mumbai 400 021. )... Petitioners vs. 1. Indian Pilots Guild ) Air India Complex, Old Airport) Santacruz (E), Mumbai 400029) 2. A. K. Agarwal, ) Asst. Labour Commissioner ) (Central), having his office ) at Mumbai Shramraksha ) Bhavan, Shivsrushti Road, ) Eastern Express Highway, Sion) Mumbai 400 022. )... Respondents Mr. S. Naphade with Mr. S. K. Talsania with Mr. J. S.Saluja i/b. M/s. M. V. Kini & Co., for petitioners Mr. J. P. Cama Sr. Counsel with Mr. K. P. Anil Kumar and Mr. Mohan Bir Singh for respondent no.1 2 CORAM: F. I. REBELLO J. Date: October 28, 2004 ORAL JUDGMENT: 1. The employer – Air India is aggrieved by the order of the Assistant Labour Commissioner (Central), 2nd respondent herein, dated 13th September 2004. By the said order the Assistant Labour Commissioner (Central) disposed of the application made by the respondent Union for recognition of its office bearers , as 'protected workmen' under Section 33 of the Industrial Disputes Act 1947. By the impugned order the Assistant Labour Commissioner (Central) was pleased to allow the application moved by the petitioners. 2. Two office bearers of the respondent no.1 were granted status of protected workmen for the year 2003 – 2004. Respondent no.1 by letter dated 19th January 2004, forwarded the names of Capt. Vikrant Sansare, General Secretary of the Union at serial no.1 and Capt. V. Kooner, Vice President of the Union, at serial no.2, as the workmen to 3 be accorded the status of ' Protected Workmen' for the period 2004 to 2005, under Section 33(4) of the Industrial Disputes Act, 1947 read with Rule 61 of the Industrial Disputes (C ) Rules , 1957. The respondents also requested that in conformity with the provisions of the Industrial Disputes Act, to confer the status of ' Protected Workmen' to the two workmen within 15 days of the receipt of the intimation. As respondent no.1 did not receive any reply a reminder was addressed on 8.3.2004 . There were no reply to the same. From the record it transpires that on June 16, 2003 the President of another association known as the Air- India Pilots Association had addressed a letter to the petitioner stating that Management should deal with the Air India Line Pilots' Association as the majority of the Line Pilots had lost confidence in the de-recognized Indian Pilots Guild and that they represented the majority of the line pilots and their union was registered on 2nd June 2003. As per the averments in the petition out of 270 line pilots the strength of members of respondent no.1 had been reduced to less than 107. It may be mentioned that this union, from the 4 pleadings, had not applied for status of protected workmen for any of its members or office bearers. As the status of protected workmen was not agreed to by the petitioner, respondent no.1 by letter dated 17th May 2004 called upon respondent no.2 as competent authority, under Rule 61 (4) to decide the dispute between an employer and a registered trade union in the matter of recognition of ' protected workmen' under the rule. It was further set out that as the respondent no.1 had complied with the requirements of Rule 61 (1), and the provisions of section 33 they were entitled to have atleast two of their office bearers recognized as 'protected workmen' . The 2nd respondent by notice dated 12th July 2004 called on the petitioner and respondent no.1 to remain present before him in the matter of the application filed by respondent no.1 under Rule 61 of the Industrial Disputes Act (Central) Rules, 1957. 3. In reply to the notice issued by respondent no.2 the petitioners by their communication of July 26/ 29, 2004 gave their comments. Firstly they contended that the respondent 5 Indian Pilots' Guild had been de-recognized by the Management of Air India with effect from 29th April 2003. It was then contended that some pilots of the petitioner had formed a new Trade Union by name Air India Line Pilots' Association and informed the Management vide its letter dated 16th June 2003 that they were representing the majority of the line pilots and that the line pilots numbering about 160 were their members. It was then contended that there were claims from both Indian Pilots' Guild as well as Air India Line Pilots' Association. Lastly it was contended that as per practice, the Management of Air India is not according the status of protected workmen to the office bearers of an unrecognized Union in Air India and that respondent no.1 is a de-recognized Union and as such the status of protected workmen has not been accorded by the Management. 4. Matter was taken up for hearing on various dates. The roznama entry of 30th July 2004 shows that the matter was fixed for evidence of the applicant on 6.8.2004 at 1715 hours. The roznama further shows that the matter was fixed 6 for evidence of the applicants. On behalf of respondent no.1 affidavit of evidence, came to be filed on 6th August 2004, before the 2nd respondent. The evidence of respondent no.1 was closed as per roznama entry of 6.8.04. Respondent no.1 informed respondent no.2 that they do not desire to lead any oral evidence in the matter. The matter was adjourned for affidavit of evidence of the petitioners to 16.8.04 at 17.15 hours. A notice was also addressed to both the petitioners and respondent nos. 1 and 2 vide notice dated 9th August 2004. The copy of the affidavit of evidence filed by respondent no.1 was also forwarded to the petitioners herein. On 16.8.04 the petitioners raised objections to the taking of affidavit of evidence as the services of the affiant were already terminated by order dated 9th August 2004. That objection was overruled. The petitioners were called upon to furnish documentary evidence. The petitioners sought adjournment which was strongly opposed by respondent no.1. The matter was however, adjourned to Monday, 23rd August 2004 at 1600 hours for final hearing. As the matter could not be taken up on 23.8.04 on account of respondent 7 no.2 being busy in other urgent matters the parties were informed that the matter is being adjourned to 10.9.2004 at 1100 hours. On that day when the matter was called out , as the petitioners were not present, respondent no.2 decided to proceed ex parte and closed the matter and posted it for orders. 5. On 10th September 2004 the petitioners moved an application that the ex parte order be set aside and the petitioners / company be permitted to participate in the proceedings and contest the application, as otherwise grave prejudice and irreparable hardship be caused to the company, if the orders are not set aside. It was set out that the company has a good case on merits. The cause shown for non-appearance was on account of severe traffic jam , as a result of which the representatives of the petitioners could reach only at 11.30 hours ,when they found that the proceedings had been closed ex parte . In the roznama of 10th September 2004 it is noted that respondent no.1 was present and none appeared for the petitioners, that the matter was fixed for cross 8 examination of the deponent of the affidavit by the employer and evidence from the employer's side, and that there was no request or intimation for adjournment till the time the roznama order was written. The matter was heard ex parte and order reserved. 6. An order came to be passed on 13th September 2004, when the various events that had taken place were narrated. The reply of 26/29th July 2004 was treated as written statement on behalf of the petitioners. The contentions of respondent no.1 along with the affidavits were then considered as also the provisions of the rules and the Act. Examining the matter on merits the 2nd respondent held that the relevant date is 19th January 2004 when an application was moved under Section 33(4) of the Industrial Disputes Act, 1947 read with Rule 61 of the Industrial Disputes (C ) Rules , 1957 forwarding the names of Capt. Vikrant Sansare, General Secretary of the Union and Capt. V. Kooner, Vice President of the Union, as the workmen to be accorded the status of ' Protected Workmen' for the period upto 31.01.2005. The order notes 9 that the said two office- bearers of the union Capt. Vikrant Sansare, General Secretary of the Union and Capt. V. Kooner, Vice President of the Union were recognized as 'protected workmen' for the year 2003-2004 which was valid upto 31st January 2004 by the employer vide letter dated 9th / 10th January 2003. The 2nd respondent then noted that the objection by the petitioner was that respondent no.1 had been de-recognized with effect from 29.4.2003, but the act and the rules only refers to registered union and not a recognized union. The objections raised by the petitioners on that count was rejected. The 2nd respondent observed that an employer by mere failure to reply or to carry out mandatory obligation of Rule 61(2), cannot escape the statutory obligation and the recognition in such a case has to be necessarily presumed and therefore the application of the Union was allowed. 7. Respondent no.2 while summarily rejecting the application on behalf of the employer for setting aside the ex parte order dated 10.9.2004 noted four reasons as to why the 10 application should not be considered, as under: a) The employer is in habit of not attending the hearing / proceedings under law on the scheduled time by down grading the status of law. b) The employer has already submitted the written comments / statement on merits in this matter. c) The employer is unnecessarily taking all procedural and other objections, which are totally irrelevant, unconnected and vague in nature, consequently making the things and procedures more complicated and complex with a view to delay the matter and defeat the very purpose of emergent provisions of law contained in Rule 61. d) The present dispute pertains to the compliance of law contained in Rule 61 by the employer and there are no questions of facts which require adjudication on evidence. 8. It is this order which is subject matter of the present petition. At the hearing of this petition on behalf of the petitioners, their learned counsel submitted as under: i) That the respondent ought to have considered that for non 11 appearance of petitioners for the hearing on 10.9.2004 sufficient cause was disclosed and considering that the order ought to have been set aside. It is further submitted that the findings recorded in para 8 under heads (a) and (c ) was contrary to the records, as the petitioners had hardly applied for any adjournment. It is submitted that by failing to give an opportunity to the petitioners they have been deprived of leading evidence and consequently the order is liable to be set aside on that count. ii) 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. Vs. The Central Government Industrial Tribunal and ors., (AIR 1981 SC 606 as also the judgment of the Apex Court in Satnam Verma vs. Union of India (AIR 1985 SC 294). In 12 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 vs. 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 and 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 13 decision of the Apex Court in P. H. Kalyani vs. M/s. Air France, Cacutta, (AIR 1963 SC 1756) 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 vs. Union of India and anr., (AIR 1998 SC 1895 ) to contend that if there is no jurisdiction, then the authority cannot assume jurisdiction. On the other hand on behalf of the respondents, their learned counsel submits that even if there be some defect in 14 the order of the 2nd respondent in the matter of rejecting the application for setting aside the ex parte order this court in exercise of its extra ordinary jurisdiction can decide the same and should not remand the matter back and dispose it on merits, as all the facts necessary for deciding controversy in issue are on record. It is then submitted that even assuming that two workmen could not be granted the status of protected workmen under Section 33, of the Industrial Disputes Act, respondent no. 1 was entitled to recognition of atleast one member considering that the petitioner earlier was granting recognition to two office bearers. Counsel of the petitioner stated that even assuming the membership of the respondent no.1 was as stated by petitioner then respondent no.1 is opting for granting status of 'protected workman' to Capt. Vikrant Sansare, General Secretary of the Union. It is also submitted that the view taken by the respondent no.2 cannot be said to be a view which could not be taken, considering Rule 61 of the Central rules. It is pointed out that on an 15 application being moved to grant status of protected workmen, the petitioners were bound to reply within 15 days from the date of receipt of the list and if no reply is sent it will be presumed that there is no dispute and consequentially the two workmen will then would have the status of protected workmen. Reliance is placed on the decision of a Single Judge of the Delhi High Court in the case of M/s. Batra Hospital and Medical Research Centre of Ch Aishi Ram Batra Charitable Trust V/s. Batra Hospital Employees Union & ors., in Civil Writ Petition No. 7748 of 2002 decided by the Delhi High Court on 19th May 2004. In that case the learned Single Judge has taken the view that the objection if any to the protected status sought by the workmen has to be communicated by the Management within 15 days and if no reply is field within 15 days by the employer, it will be deemed that the workmen mentioned in the application enjoyed the status of protected workmen. Reliance is also placed on the judgment of the Division Bench of the Gujarat High Court in the case of R. Balasubramanian and ors and Carborandum Universal Ltd., Okha., ( 1978 1 LLJ 432). The learned 16 Division Bench of the Gujarat High Court has also taken the view that on failure to reply it will be presumed that the employer has committed default in his statutory obligation. The Gujarat High Court considered the view of the Apex Court in Kalyani's case (supra) and distinguished the same by holding that the ratio clearly proceeds on the special facts that the company had in its reply clearly pointed out the legal defects and therefore disputed the question of statutory obligation under Section 33(4) and unless the defects were duly remedied there will be no question of recognition. Reliance is also placed in the judgment of a learned Single Judge of this court in Maharashtra State Road Transport Corporation, Akola and Conciliation Officer and ors. (1994 1 LLJ 41, to contend that the learned Judge of this court had taken the view that when there are more than one Union, each union is entitled to protection of at least one of its memebrs and consequently to the status of a protected workmen. Reliance is also placed in the case of British Airways p.l.c . ... vs. MMJ Rao, Assistant Commissioner of Labour being Writ Petition No. 2029 of 1997 dated 17 3/12/1997, to contend that the jurisdiction exercised by the 2nd respondent is a limited jurisdiction to consider whether the workmen should be given the status of a protected workmen and the issues like whether the workmen concerned fall within the definition of workmen or not could not be gone into. It is also pointed out that the management could not have raised that grievance about existence of another union, and grant of recognition as the other Union has not raised a dispute. 9. With the above the following questions are required to be considered and answered: a) If this court comes to the conclusion that the cause shown amounts to a sufficient cause whether this court should remit the matter back to the 2nd respondent for consideration or itself consider the case on merits in its exercise of the powers conferred under Articles 226 and 227 of the Constitution considering the period of declaration sought is for one year and on the facts of the present case? b) Whether on the failure by the Management to 18 communicate the decision to the Union within 15 days of receipt of the application from the Union do the workmen in respect of whom protected workmen status is sought are deemed to be granted the status of 'Protected Workmen' ? If not what are the consequences? and c) Whether on an application by the Union under Rule 61 , was it open to the respondent no.2 to confer the status of 'protected workmen' from the date of application made to the employer or in the alternative from the date the application was made to the 2nd respondent, and if not on what other date? 10. In order to answer these issues we may first consider the true import of section 33 (4) of the Industrial Disputes Act 1947 and Rule 61 of the Central Rules, which read as under: “Section 33(4) In every establishment, the number of workmen to be recognized as 'Protected Workman' for the purpose of sub- 19 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 recognized as Protected Workmen. “ Rule 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 20 that establishment and who in the opinion of the Union, should be recognized as “ Protected Workmen “ . Any change in the incumbency of any such officer shall be communicated to the employer by the Union within 15 days of such change. 2) The employer shall subject to Section33, 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 number of names received by the employer under sub – rule (1) exceeds the maximum number of “ Protected Workmen” admissible for the 21 establishment under section 33, sub section (4), the employer shall recognize as “Protected Workmen “only such maximum number of workmen.” “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 any Regional Labour Commissioner (Central) or Assistant Labour Commissioner (Central) concerned, whose decision thereon shall be final.” From a perusal of section 33 (4) it is clear that in every establishment, a certain percentage of workmen is required to be recognized as ' Protected Workmen' for the purpose of sub- section (3) of section 33. It is not necessary for this court to go into the reasons for that, as that has been considered and explained in several judgments of the Apex Court itself. The object being to give blanket protection to 22 the workman so protected from unwanted victimization so that they could discharge duties on behalf of the union and or workmen without fear of being penalized. The protection is limited to 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'. If there be more than one union then in terms of the rules made there has to be a proper distribution of such Protected Workmen amongst various trade unions connected with the establishment. Rule 61 Industrial Disputes Act (Central), 1957 provides for the manner in which the application must be made and communicated to the employer. The protection granted is for a period of 12 months from the date of such communication. The proviso to sub rule 3 merely reflects the language of sub section 4 of section 33. It may be noted that Capt. Vikrant Sansare, General Secretary of the Union and Capt. Khan had the status of 23 Protected Workmen upto 31st January 2004. The application on 19.1.2004 was to grant protection to Capt. Vikrant Sansare and Capt. V. Kooner. This will naturally be from 1st February 2004 for a period of one year extending upto 31.1.2005. The rule does not specifically set out the day and date from which the protection should commence. What the rule provides is that the workmen who are recognized will be treated as Protected Workmen for the period of 12 months from the