MY 2 QUERIES - PLS REPLY

For ESI, one has to fill the declaration Form -1, separate for both male and female employees. The employer shall then send a return of declaration forms in Form-3, in duplicate within 10 days from the date on which the declaration forms are submitted, along with the declarations forms. It is also prepared separately for male and female employees.

The Explanation to Section 33 of the ID Act gives the meaning og Pretected Employee. I have extracted the said provision.

33. CONDITIONS OF SERVICE, ETC., TO REMAIN UNCHANGED UNDER CERTAIN CIRCUMSTANCES DURING PENDENCY OF PROCEEDINGS. - (1) During the pendency of any conciliation proceeding before a conciliation officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall, - (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or

(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.

(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman, - (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or

(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman : Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.

(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.

(5) Where an employer makes an application to a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal under the proviso to sub-section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, within a period of three months from the date of receipt of such application such order in relation thereto as it deems fit :

Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit :

Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub-section had expired without such proceedings being completed.

Mr. Prakash thanx for the reply.

Pls tell me wether the union members and the executive / office bearers are the protected workmen? (as it is said min 5)

As far as ESI declaration is concerned i am clear about it, but my question is wether we need to give seperate return of contribution i.e half yearly retuns i.e Apr - Sep, and Oct to March seperately for males and seperately for females?

Pls reply.

Jagdish

I may add some thing to your query on 'Protected Workmen'

A list of workmen which is 1% subject o minimum five is forwarded to the manangement every year by 30th April, who are to be recognised as Protected Workmen. The management in writing confirms the recognition within 15 days  and if the same is not recognised Union can make a reference to Assistant Labour Commissioner, who shall then decide the dispute and declare the recognition.

During the time of agitation, there are a group of workmen who lead the agitation and in such circumstances they irk the employer and are target of victimisation. Section 33 of the Industrial Dispute provides that when any dispute is pending before the conciliation,   Labour court, Industrial Tribunal or Industrial Arbitrator, the conditions of service etc. will remain unchanged Section 33(1) a,b provides for protection to other workmen connected with the dispute and  section 33(3) providesprotection to protected workmen. The protection is that the conditions of service which were applicable to them immediately before the commence of proceedings shall not be altered to their prejudice and they will not be discharge or dismissed pending such proceedings.

The remedy is by filing a complaint before the Tribunal,Court or Conciliation Officer, and or fiiling a complaint under section 31.

My views based upon my large experience 

The provisions of law which were meant to encourage collective bargaining by giving protection to workmen who spearhead any agitation to improve their service conditions do not meat the intent of the legislature and are inadequate to give  the requiste protection.

First of all the provisions are applicable during the pendency of any poroceedings in relation to an Industrial Dispute. An Industrial Dispute before a conciliation officer or before coming to an Industrial court takes time in culminating to be an Industrial dispute and during the period the employer can take any action. Even when an Industrial Dispute, except in case of termination, has to be compulsory conciliated upon, a complaint before the conciliation officer is ineffective as he does not have power to grant any relief . He can only file a complaint under section 31 for proceedings against the employer in criminal law, but can not grant any interim relief to victimised  workmen. He has only to refer the subsequent dispute under complaint to Industrial Court for adjudication.

Even when the proceedings come to end which is usually a case, when peace is restored in the industry, employer can avenge his displeasure.

There are many service conditions which donot come under the schedule to the Act . For example, normally a transfer is not a change in service condition and in a disguise of transfer victimisation can take place. Now a days Courts are hardly helpful to workmen in case of transfers. A clear and convincing malafide intention is required to prove victimisation. Suspension of an employee is also not change in service condition. 

More than  anything else it is delay in getting justice which would break a workman. A workman can be discharged and an application filed for permission under section 33 (2) b or 33(3) , which may take years to be decided and meanwhile the workmen surrenders in hunger. In my long experience I have not come across a case when the labour court  has granted an interim relief by awarding full salary during the period when the employer application for permission is pending. Interim Relief by way of continuation in job during pendency of proceedings has been held to be unjustified. 

Sir,

Pls note

Mine is an unit where we have no registered unions at all.  Are we supposed to still declare "Protected Workmen"?

Or this applies to only units with registered unions and governed by Trade Unions Act?

Pls clarify.

Saravana Rajan

No  You donot have any obligation in this regard. As per amendment in the ID Act  a member or office bearer of Trade Union can be a protected workman.

Thank you Mr. Harbhajan