[Cites 5, Cited by 0]
Delhi High Court
M/S Aggarwal Hotels Pvt. Ltd vs Assistant Labour Commissioner & Anr on 28 November, 2025
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 13.11.2025
Judgment pronounced on: 28.11.2025
+ W.P.(C) 1199/2015 & CM APPL. 2096/2015
M/S AGGARWAL HOTELS PVT. LTD. .....Petitioner
Through: Mr.Anil K.Hajelay, Advocate
versus
ASSISTANT LABOUR COMMISSIONER & ANR.....Respondents
Through: Mr. Vinay Singh and Ms. Sangita
Singh, Advocates for R-2.
+ W.P.(C) 2874/2018 & CM APPL. 11598/2018
AGGARWAL HOTELS PVT LTD .....Petitioner
Through: Mr.Anil K.Hajelay, Advocate
versus
ASSISTANT LABOUR COMMISSIONER & ANR.....Respondents
Through: Mr. Vinay Singh and Ms. Sangita
Singh, Advocates for R-2.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. The present writ petitions under Article 226 of the
Constitution of India have been filed by the petitioner assailing
Annexure P-1 in both the petitions, i.e., Orders dated
07.04.2014 in F.25(1)/ALC/PW/DLC/NDD/2014/934 passed by
the Assistant Labour Commissioner (New Delhi), Labour
Department, Govt. of NCT Delhi and 21.02.2014 in
F/l/PW/ALC/NDD/2017/466 passed by Deputy Labour
Commissioner, District New Delhi, Women and Child
Development Department Building, New Delhi, whereby
respondent no.1 while dealing with an application dated
14.02.2014 pertaining to the recognition of protected workmen
declared seven office bearers of respondent no. 2 as 'Protected
Workman'.
2. The short factual background of the case is as follows:
The petitioner is a private limited Company incorporated under
the Companies Act, 1956, having its office at P-16, Connaught
Circus, New Delhi. The petitioner is involved in hospitality
business and has two hotels, namely, M/s Hotel Alka and M/s
Hotel Alka Annexe in New Delhi, and a restaurant, namely, M/s
M/S Tavern on the Greens at Lado Sarai, New Delhi. The
petitioner has approximately 80 employees. Respondent no. 2,
claiming to be a registered trade Union, submitted an
application dated 21.01.2014, i.e., Annexure P-3, before the
petitioner on 24.01.2014, seeking a declaration of seven of its
office bearers as 'protected workmen'.
2.1. The petitioner sent Annexure P-4 reply dated
03.02.2014 to respondent No.2, inter alia, stating that the total
strength of the petitioner was around 80 only. The maximum
number of workmen who could be granted protection could not
exceed five. The respondent no. 2 was also informed that five
of the persons mentioned that their application were under
suspension for acts of misconduct and that disciplinary
proceedings were pending and in progress. It was pointed out
that immunity could not be granted under the guise of the status
of protected workmen. Annexure P-5 (Colly) contains copies of
the suspension letters and charge sheets issued to the said five
workmen.
2.2. The petitioner also stated in the reply that different set
of persons were claiming to be office bearers of the second
respondent/Union having the same registration number, i.e.,
1150, thus creating doubts as to which Union was the genuine
one. The petitioner, requested documents for verification,
including proof of proper elections through which the persons
named in the application were elected as office bearers.
However, respondent no. 2 failed to provide any of the
documents sought and thereafter, filed Annexure P-6, an
application dated 12.02.2014, before respondent No. 1 seeking a
declaration that the same seven office bearers be declared
protected workmen.
2.3. The petitioner further alleged that respondent no.
2/Union had no locus standi to represent the workmen of the
petitioner. According to the petitioner, Mr. Sita Ram Mishra
was not the President of the Hotel Mazdoor Union bearing
registration number 1150, since the same registration number
was also being used by one Gopi and one Maya Ram, who
claimed to be the President and Secretary, respectively, of the
Hotel Mazdoor Union operating from a different address.
2.4. Respondent No.1, on the basis of the said application,
issued Annexure P-7, show cause notice dated 14.02.2014 to the
petitioner. Pursuant to the notice being received, the petitioner
filed reply dated 10.03.2014 reiterating the stand taken earlier in
their reply to the second respondent.
2.5. Respondent no. 2 filed a counter, denying the
allegations of the petitioner and contending that respondent no.
2/Union was functioning within the establishment of the
petitioner and that one Sita Ram Mishra and Ranjan Kumar
were the President and Joint Secretary respectively of the
Union. It was also contended that the Union had passed a
resolution dated 02.01.2014 declaring the seven workmen
mentioned in the application as protected workmen. They
further contended that even workmen under suspension and
facing disciplinary action were entitled to be declared as
protected workmen under Rule 61(1) of the Industrial Disputes
(Central) Rules, 1957 ( the Rules).
2.6. Respondent no. 1, as per the impugned order dated
07.04.2014, declared all seven workmen mentioned in the
application given by respondent no. 2 as protected workmen.
Aggrieved, the petitioner/management has come up in appeal.
3. It is submitted by the learned counsel appearing for the
petitioner/management that respondent no. 1 has grossly erred in
allowing the application submitted by the second respondent and
declaring the seven workmen mentioned therein as protected
workmen, without considering whether they satisfied the essential
requirements of Rule 61 of the Rules. It is submitted that as long
as disciplinary proceedings are pending, no such protection could
have been given. Further, mere existence of an employer-
employee relationship between the parties is no ground to grant the
status of protected workman to workmen who were facing
disciplinary proceedings. Moreover, there are rival claimants to
the very same Union. Despite this, respondent No. 2 has not
produced any documents to establish that they are the actual Union
representing the employees of the petitioner/management. None of
the documents sought by the petitioner/management have been
produced by respondent No. 2. Therefore, it is submitted that the
impugned order, which reflects no application of mind and non
examination or consideration of the material aspects, cannot be
sustained for a moment. It is also submitted that the application
dated 21.01.2014 submitted by respondent No. 2 to the petitioner-
management was premature and, therefore, could not have been
considered.
4. Per contra, it is submitted by the learned counsel for
respondent No. 2/Union that the application was filed within the
time limit prescribed under Rule 61. It is further submitted that
when the workmen mentioned in the application were already
enjoying the status of protected workmen, disciplinary proceedings
were initiated against them, and they were suspended on fabricated
grounds. This, according to respondent No. 2, would not take away
their right to be declared as protected workmen. It is only in a
situation where the workmen have not been granted such
protection and disciplinary proceedings are thereafter initiated, that
the protection cannot be conferred. In the present case, the
workmen named in the application were already enjoying the
status of protected workmen and, therefore, the initiation of
proceedings during the subsistence of such protected status is no
bar to granting them the status of protected workmen in subsequent
years as well.
5. Heard both sides.
6. It would be appropriate to refer to Rule 61 of the Rules,
which reads thus:-
"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 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 any Regional Labour Commissioner
(Central) or Assistant Labour Commissioner (Central)
concerned, whose decision thereon shall be final."
7. I also refer to sub-Rules (3) and (4) of Section 33 of the
Industrial Disputes Act, 1947 (the Act), which reads thus:-
"33. Conditions of service, etc., to remain unchanged under
certain circumstances during pendency of proceedings.--
(1) ***
(2) ***
(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--
(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.
(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.
...."
8. As is evident from a reading of sub-section (4) of Section
33 of the Act, 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 of five and a maximum of
one hundred protected workmen. According to the petitioner, they
have only around 80 employees in their organisation. Therefore,
the number of workmen who can be granted the status of protected
workmen cannot exceed five. However, sub-rule (3) of Rule 61 of
the Rules makes it clear that 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,
the employer may recognise only such maximum number.
Therefore, even if the number of persons proposed for protected
status exceeds the permissible limit, the employer may restrict the
recognition in compliance with the aforesaid Rule. Hence,
respondent No. 2, can at best, seek protection of only five of its
office bearers to be given protected status.
9. Now coming to the question whether the workmen
proposed by respondent No. 2 can be granted the status of
protected workmen: According to the petitioner, five of the
workmen referred to in respondent No. 2's application have been
suspended and are facing disciplinary proceedings. Documents in
support of this contention have also been produced. Respondent
No. 2 does not dispute that disciplinary proceedings are pending
against these five workmen. On the other hand, their contention is
that despite such pending proceedings, the said workmen are still
entitled to be granted protection.
10. In this context, I refer to a Division Bench decision of the
High Court of Kerala in HLL Lifecare Ltd. v. Hindustan Latex
Labour Union (AITUC), 2010 SCC OnLine Ker 3762. The
question considered in the said case was whether a Union was
entitled to nominate a person against whom disciplinary
proceedings were pending. This was answered in the negative by
holding that, although the selection of office bearers of the Union
for declaration as protected workmen lies within the exclusive
discretion of the Union, the management is not bound to approve
the list of names forwarded by the Union. In other words, it is for
the Union to select its office bearers and to forward the names of
those whom it considers eligible for recognition as protected
workmen. However, it is equally open to the management to
examine whether any of the nominated office bearers is
undesirable or ineligible for recognition, and if valid reasons exist,
the management is free to reject such nominations. If the
management declines to recognise any office bearer as a protected
workman, it is for the Union either to contest the decision by
raising a dispute before the Regional Labour Commissioner or
Assistant Labour Commissioner under sub-rule (4) of Rule 61 of
the Rules, whose decision shall be final, or to submit the name of
another office bearer for recognition in place of the rejected
candidate.
10.1. It was further held that the management was entitled to
decline recognition to any person(s) nominated by the Union for
the status of protected workmen if disciplinary proceedings were
pending against such workman. The Union certainly could not
exercise its power under Rule 61(1) of the Rules to confer
immunity upon an employee against whom disciplinary
proceedings have been initiated by nominating him for recognition
as a protected workman. In the said case, it was found that the
workman nominated by the Union was facing disciplinary
proceedings. Therefore, the action of the management in declining
to grant him protected status was held to be justified, and the
decision of the Assistant Labour Commissioner overruling the
management's decision was found unsustainable.
11. I respectfully concur with the aforesaid dictum. As
noticed earlier, the fact that disciplinary proceedings are pending
against five of the seven workmen proposed for recognition as
protected workmen is not disputed by respondent No. 2/Union.
That being the position, the petitioner was well within its rights to
decline recognition to such workmen. The first respondent, without
considering this material aspect, allowed the application filed by
respondent No. 2 seeking protected status. The first respondent
erred in holding that merely because an employer-employee
relationship exists, the management is bound to grant protected
status to the workmen named in the application.
12. In the result, the impugned orders are set aside, and the
writ petition is allowed. It is for the second respondent to nominate
one or more other office bearers for recognition as protected
workmen, or to await the final outcome of the disciplinary
proceedings and thereafter consider whether the delinquent
employee(s) may be nominated for recognition again.
13. Application(s), if any pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
NOVEMBER 28, 2025
