Point of Law: Rule 61 of Industrial Disputes (Central) Rules, 1957 reads as protected workmen.

ORDER :

1. The petitioner is a registered Company and has one of its factory in Belur Industrial Area, Dharwad. Some of its employees are members of the 1st respondent Trade Union. The 1st respondent requested the petitioner to recognize certain office bearers of the Union as protected workmen. As the petitioner did not recognize the members proposed by the 1st respondent as protected workmen, it approached the 2nd respondent for necessary orders. The 2nd respondent after hearing the petitioner and the 1st respondent, has passed the impugned order dated 20.12.2022 bearing No.UKAABE/IDA/SR-02(1)/2022-23/3878 vide Annexure-N to the writ petition, recognizing 11 persons as protected workmen. Aggrieved by the persons at Sl.No.2, 4, 7 and 11 in the list being given the status of protected workmen, the petitioner has preferred this writ petition. With regard to other persons, petitioner has no objection for them being recognized as protected workmen.

2. The case of the petitioner is that, disciplinary proceedings are initiated against persons at Sl.No.2 and 4 of the list, namely, Sri. Shivayogi Halabhavi and Sri. Veeresh Patil and the said proceedings are pending against them. It is further submitted that, disciplinary proceedings were initiated against persons at Sl.No.7 and 11, namely, Sri.Mahantesh Navani and Sri.Rajashekhar and they were dismissed from service. However, they have been ordered to be reinstated by the Labour Court, but, the order of the Labour Court has been challenged before this Court by way of writ petition and an interim order has been passed staying the order of reinstatement passed by the Labour Court. For the said reasons, it is submitted that the 2nd respondent erred in according the said persons a status of protected workmen at the behest of the 1st respondent.

3. Per contra, the 1st respondent submits, proceedings initiated against the said workmen have not reached finality and they continue to be the workmen for the purposes of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the ID Act’, for brevity), and in some cases, charges have been leveled after a request was made that they should be declared as protected workmen and in some cases, they were recognized as protected workmen in the previous year even though charges were pending against them, but it has been objected in the current year and for that reason, it is prayed that the writ petition be dismissed.

4. Section 33(3 & 4) of the ID Act reads as under:

“33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.-

(1) xxxxxxxxxx

(2) xxxxxxxxxx

(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, co