Delhi Transport Corporation vs Dtc Workers Union Centre
2006 Latest Caselaw 1744 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the validity of order dated 2.9.2004 whereby the Assistant Labour Commissioner gave the status of 'protected workmen' to 26 executive members of the respondent union.

2. Briefly, the facts are that the respondent union vide an application dated 8.4.2004 requested the Assistant Labour Commissioner to declare all members of its executive numbering 26 as protected employees because the management had not declared them as protected employees despite a request made by the union.

3. The Assistant Labour Commissioner vide impugned order dated 2.9.2004 held that the respondent union was a registered union and its executive members were entitled to be declared as protected employee so he passed an order declaring all 26 executive members as protected employees. The order has been challenged by the petitioner on the ground that the order was contrary to Section 33 of Industrial Disputes Act as well as Rule 61 of Industrial Disputes (Central) Rules 1957. Petitioner stated that the respondent was not a recognised union of the employees of the petitioner, the recognised union was DTC Employees Congress. There were 18 Registered Unions functioning among the employees of petitioner corporation and it was not legally possible to give protection to all the executive members of all the unions. In the counter, respondent had stated the order of Assistant Labour Commissioner was valid and contended that petitioner was duty bound to declare the executive members of the respondent as protected employees. The respondent was entitled to be recognised in accordance with the rules made on this behalf by the petitioner. No other union approached the petitioner management seeking declaration as protected employees, therefore, 26 office bearers of the respondent union were rightly declared as protected workmen.

4. Section 33(3) which provides for the protection to the office bearers of union reads as under:

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 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 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.

(4) 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.

Cognizance of offences - (1) No Court shall take cognizance of any offence punishable under this Act or of the abetment of any such offence, save on complaint made by or under the authority of the appropriate Government.

(2) No Court inferior to that of [a Metropolitan Magistrate or a Judicial Magistrate of the first class] shall try any offence punishable under this Act.

5. Rule 61 of Industrial Disputes (Central) Rules 1957 gives procedure for giving status of protected workmen in following terms:

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 workman only such maximum number of workman.:

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 workman' under this rule, the dispute shall be referred to the (any Regional Labour Commissioner (Central) or ) Assistant Labour Commissioner (Central) concerned, whose decision thereon shall be final.

6. A perusal of Rule 61 & Section 33(3) would show that total number of protected workmen in any establishment cannot be more than 1% of the total strength of the workmen or 100, whichever is less. The maximum number of protected workmen cannot exceed 100 and the minimum number has to be 05. It is also provided that where there are more than one registered trade unions, the maximum number of protected workmen of the establishment are to be so distributed by the employer among the unions that the number of recognised protected workmen in an individual union bear roughly the same proportion to one another as the membership figures of the union.

7. Rule 61 regarding conferring status of protected workmen on the office bearers of different unions is applicable to the Labour Commissioner, the Assistant Labour Commissioner as well. The same principles are to be followed by Assistant Labour Commissioner as are required to be followed by the employer for giving status of protected workmen to office bearers of union, when an application is made. It is very surprising that in this case the Assistant Labour Commissioner had recognised all 26 executive members of the union as protected workmen without mentioning anything about the membership of the union in the petitioner establishment, the members of other union, how the total number of 100 protected workmen are to be distributed amongst different trade unions. If, there are eighteen registered unions, no union would have more than 06 members as protected workmen if all of them have equal membership. While deciding the application, the Assistant Labour Commissioner was supposed to take into account the membership of the respondent. In order to qualify to get the status of protected workman for its office bearers a registered trade union must not only registered but be well connected with the establishment i.e. it should have a substantial number of employees of establishment as its members themselves to ensure and eradicate popping up of puppet body either of the management or of a national trade union. The status of protected workman should not be granted only to save the workman from transfers or disciplinary actions even if the workman is not involved in the trade union activities and in office bearer for name sake. Normally, a trade union seeking status of protected workmen for its executive members should be a recognised union by the establishment. However, if the recognition had been denied arbitrarily the trade union may make out a case for seeking status of protected workmen for some of its executive members pleading arbitrarily denial of recognition. Where there are more than one union and some of which genuinely represent the workforce, the conferring of 'protected workmen' status shall be governed by Section 33(4) of the Industrial Disputes Act. The Assistant Labour Commissioner or Labour Commissioner have to be careful not to grant status of protected workmen to those who do not belong to registered trade union or who do not have cognizable membership in the establishment. Every trade union who applies for status of protected workmen for its executive members must disclose the number of its members working in the establishment and if required Assistant Labour Commissioner may call for verification of such a claim or call for list of members.

8. The order of the Assistant Labour Commissioner cannot stand the scrutiny of provisions of law. The Assistant Labour Commissioner did not bother to know what was the membership of the respondent trade union working in the establishment whether the union has applied for recognition to the management and if recognition has been arbitrarily denied whether the executive members were actively involved in trade union activities or not, how many unions were active in the establishment what was the respective membership of the unions. These questions and similar queries should have been made and discussed by the Assistant Labour Commissioner in his order. The order of an Assistant Labour Commissioner is silent on all the aspects and therefore, cannot be allowed to stand.

9. I therefore, quash the order of Assistant Labour Commissioner granting status to all the 26 executive members as protected workmen. Accordingly, the writ petition stands allowed.