Conferring 'Protected Workman' Status On Delinquent Workman Facing Disciplinary Action May Encourage Others To Indulge In Such Activities: Karnataka HC

The Karnataka High Court has held that if it is proved in the disciplinary proceedings that a workman is guilty of the allegations or if a charge sheet is filed in a criminal case by the police in that event, the said workman cannot be accorded the status of “protected workman”.

A single judge bench of Justice K S Hemalekha set aside the order passed by the Labour Commissioner on an application moved by Armstrong Design And Acmite India Manufacturing Workers Union, recognizing all five workmen including one Umesha K P, against whom departmental enquiry was initiated and later dismissed as a “protected workmen” for the year 2023-24.

The petitioner M/s. Arm Strong Design and Acmite India Manufacturing Pvt. Ltd had primarily questioned the application filed by the Union Section 33 (4) of the ID Act before the court to decide upon the status of “protected workmen”.

The petitioner submitted that enquiry was held against Umesha K.P and it was completed holding him guilty for the act of misconduct. Even a second show-cause notice was issued calling upon him to show cause as to why the enquiry report and finding should not be accepted and acted upon.

Further on receipt of the reply by Umesha and the management after taking into consideration all the material, the disciplinary authority dismissed him from his services and the application was filed by the petitioner under Section 33 (2) (b) of the Industrial Disputes Act, seeking approval of the order of dismissal.

In the interregnum on 03.04.2023, the Union submitted a letter to the petitioner-company to declare five of its office bearers and in place of one Ravi Kumar .S, Assistant Secretary, the name of the delinquent Umesha K.P. was included as “protected workmen” for the year 2023-24.

However, pending consideration of the application filed by the petitioner the respondent No.1 (Labour commissioner) passed the impugned order recognizing all the five office bearers, including Umesha K.P. as “protected workmen” for the year 2023-24.

The petitioner argued that despite the request made by the petitioner-company seeking details about the general body, office bearers when they were elected and when it was decided to nominate those office bearers as “protected workmen”, the Union did not submit any details/records and as such, respondent No.1 ought not to have declared five of those workmen as “protected workmen”.

Further, it was submitted that the Union seeking special status as “protected workmen” of his office bearers is duty bound to furnish the details sought by the employer.

The bench noted that Rule 62 (2) of the Industrial Disputes (Karnataka) Rules, 1957 similar to Rule 61 (1) of the Industrial Disputes (Central) Rules, 1957 specifies that every registered trade union shall communicate to the employer before the 30th of 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 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.

"In the instant case, even before the petitioner could reply to the letter, respondent No.2-union approached respondent No.1 to decide the status of “protected workmen.”" it noted.

Courr said as envisaged under Section 6 of the Trade Unions Act, the names of those only office bearers can be communicated who have been appointed/elected in accordance with the rules of the trade union and if the employer has a doubt that the office bearers had not been appointed in accordance with the rules, he has every right to ask the trade union to provide him the details of appointment of the office bearers and the manner in which they have been elected or appointed.

“The status of the “protected workmen” is a privileged status which is granted by law for smooth functioning of the trade union. The status of a “protected workman” is given so that the office bearers, elected by the workmen, are not victimised by the employer only because they had been elected as office bearers of the trade union. The “protected workmen” is provided safeguards against any action of management and the said safeguard is not available to the other workmen, thus the employer has every right to ensure that the status of the “protected workmen” sought for by the union is of genuine persons and the shield of “protected workmen” sought is not to be misused,” it said.

Court held the material on record clearly indicates that during the pendency of disciplinary proceedings, respondent No.2-union has sought inclusion of the name of Umesha K.P. as a “protected workman” for the year 2023–24.

It added “Though the pendency of any disciplinary proceedings may not be considered sufficient to deny the status of “protected workmen”, if it is proved in the disciplinary proceedings that a person is guilty of the allegations, or if a charge sheet is filed in a criminal case, after due investigation by the police, then in that event, it can be held that the said workman cannot be accorded the status of “protected workman.”

Referring to the coordinate bench judgment in the case of Wonderla Holidays Limited, Bengaluru Vs. Assistant Labour Commissioner, Bengaluru (2019), the court said “If the delinquent workman facing disciplinary proceedings is bestowed with the status of “protected workman”, it will do nothing but encourage the other workmen to indulge in such activities and get them protected under the shield of “protected workman.”

Thus it allowed the petition in part observing, “The reasoning accorded by the Assistant Labour Commissioner that the workman is neither facing charges of serious offences nor has been convicted by the trial Court is not justifiable and the matter requires to be reconsidered by the Labour Court by following settled principles of law regarding the entitlement of a workman to be declared as a “protected workman.”

Appearance: Advocate Prashanth B K for Petitioner.

HCGP Rashmi Patel for R1.

Advocate T S Anantharam for R2.

Citation No: 2024 LiveLaw (Kar) 77

Case Title: M/s. Armstrong Design And Acmite India Manufacturing Private Limited AND The Assistant Labour Commissioner

Case No: Writ Petition No 1049/2024

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