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IN THE HIGH COURT OF DELHI AT NEW DELHI


SUBJECT:



Civil Writ Petition No.7748/2002


DATE OF DECISION :- 19th May, 2004


Industrial Disputes Act – Protected Workmen


M/s Batra Hospital & Medical Research

Centre of Ch. Aishi Ram Batra Charitable
Trust ... Petitioner

Through Mr.Parag P. Tripathi, Sr. Advocate

with Mr. Anupam Lal Dass and Ms.Monica Vermani, Advocates.




Versus



Batra Hospital Employees Union & Ors ....Respondents

Through Mr. Umesh Sharma, Advocate.



CORAM :-

HON'BLE MR. JUSTICE MUKUL MUDGAL



1. Whether Reporters of local papers may be

allowed to see the judgment? NO



2. To be referred to the Reporter or not? YES



3. Whether the judgment should be reported

in the Digest ? YES



Mukul Mudgal, J.



1. The petitioner is a super specialty Hospital and a Medical Research Centre and respondent No.1 is said to be the recognized union of the petitioner hospital.



2. This writ petition challenges the order dated 10.10.2002, passed by the Assistant Labour Commissioner under Rule 61 read with Section 33(4) of the Industrial Disputes Act, 1947(hereinafter referred to as the `Act') whereby the application of the Union for declaring five workmen, including respondent no.3, as `protected workmen' was allowed and they were declared as `protected workmen' w.e.f the date of the application, namely, 06th March, 2002.



3. The petitioner's case is as under:-

(a) That while the application for declaring respondent no.3 as a `protected workman' was filed on 06th March, 2002 he was declared as `protected workman' by the Assistant Labour Commissioner only on 10th October, 2002. On 4th June, 2001 the petitioner had already issued a charge sheet to the workman for his having outraged the modesty of a nurse and disciplinary proceedings were initiated against him.

(b) That the services of respondent no.3 were consequently terminated on 10.5.2002 and by that date he had not been declared a `protected workman'. An application under Section 33 (2) (b) was filed by the petitioner management with the Industrial Tribunal seeking approval of the dismissal of respondent no.3.

(c) That as the order dated 10.10.2002 has been given effect to w.e.f. 06th March, 2002, respondent no.2, on an application of respondents 1 and 3, initiated proceedings under Section 31 of the Industrial Disputes Act for prosecution of the officers of the petitioner management. As the order was passed at a time when respondent no.3 was not a `protected workman' any order passed by respondent no.2 will not make him a `protected workman' during the period when the order of dismissal was passed by the management.



4. The respondent No.1 Union's case is as under:-

(a) That in terms of Rule 61 of the Industrial Disputes Central Rules, 1957, it is the duty of the management to communicate within 15 days of receipt of the names and addresses under sub-Rule (1), the list of workmen recognized by them as `protected workmen' for a period of 12 months from the date of such communication.

(b) That as no such communication was sent by the management within 15 days as required by Rule 61 (2), the Union had no option but to move an application before the Assistant Labour Commissioner for declaring the said workmen as a `protected workmen'. Even prior to the letter dated 6th March, 2002 given by the Union for declaring respondent no.3 as a `protected workman,' the said respondent was a protected workman and as such he was required to be protected and was entitled to all the safeguards provided by the Section 33 of the Industrial Disputes Act.

(c) That the effect of the protection afforded by the order of declaring the workman as a `protected workman' under Section 33 of the Act would relate back to the date of making the application and, therefore, it is of no consequence that the order was passed on 10.10.20002, declaring the workman as `protected workman' w.e.f. the date of the application. For this reliance has been placed by learned counsel for the respondent upon a judgment of the Gujarat High Court reported as R. Balasubramanian Versus Carborandum Universal Ltd. 1978 1 LLJ 432. It is also submitted that if the construction suggested by the petitioner company is accepted then the protection afforded by Section 33(4) would become illusory and meaningless. An employer by the mere delay of its response to the application can frustrate the beneficial effect of the provision. Such a position could not have been postulated by the legislature.



5. The petitioner's principal plea is that a dismissed employee/respondent No.3 cannot be granted the benefit of a protected workman under Section 33(4) of the Industrial Disputes Act, 1947. The petitioner has questioned the grant of the protected status said to be granted retrospectively till the date of the dismissal dated 10th October, 2002. The relevant portion of the order of the Labour Commissioner dated 10th October, 2002 reads as follows:

"The contention of the Management that there is no union by the name of Batra Hospital Employees Union in their Institution, is absolutely wrong. In fact, the truth of the matter is that a Union by this very name is registered with the Registrar of Trade Unions. Evidence was also adduced on behalf of workmen in this regard. Apart from this it has been further contended by the Union that the technical errors raised in the written reply filed by the Management may kindly be ignored. Apart from this in reply to the name of the Institution, it has been stated by the Union that they have correctly mentioned the name of the Institution in their Application, as has been mentioned in the Brochure wherein the name of the Institution has been shown as Batra Hospital & M.R.C. In this regard, the Union has also filed a photocopy of the Brochure. With regard to Vijay Singh it has been contended by the workmen that the date of dismissal of Shri Vijay Singh is 10.5.2002 and he is entitled to be declared as Protected Workman till that date. Therefore, on the basis of the aforesaid analysis, I hereby declare Shri Vijay Singh as Protected workman upto 10.5.2002 and declare Shri Dharmendra, Vice President, Shri Devendra Kumar, General Secretary, Shri Sohan Lal [D.W.], Joint Secretary, Shri Attar Singh, Secretary, Shri Kundan Singh Dharkoti, Treasurer also as Protected workmen for the year 2002-2003.



Accordingly this order is being passed today the 10th October, 2002 under my seal and signature."



6. The sheet anchor of the petitioner's case on facts has been the conduct of the delinquent respondent No.3 qua his role in the alleged molestation of a staff nurse on which has been put in the forefront by the learned senior counsel for the petitioner, Shri Parag Tripathi. Normally, the facts would not have sufficient relevance in the question of law involved in this petition but since the facts have been highlighted, I have thought it fit to deal with them briefly.



7. The respondent has pointed out the chronology of events to suggest that the assault on the staff nurse is a counter blast engineered in response to the order passed by the learned Single Judge on 31st May, 2001 by which the protected workman status was granted to the respondent No.3 in the following terms:-



"Till the disposal of the application for grant of protected workman status, the service of the workman mentioned in Annexure P-I shall not be terminated."



8. The respondents have pleaded that the show cause notice dated 4th June, 2001 was a concocted incident designed to frame respondent No.3 in a fraudulent manner for terminating his services on this concocted allegation. It was also meant to frustrate the effect of the learned Single Judge's order dated 30th May, 2001, protecting the petitioner's services. I am not dealing with this issue of the legality of termination of services of respondent No.3 and would have normally refrained from expressing any opinion on this issue. However, in view of the fact that the counsel for petitioner, Shri Tripathi laid considerable emphasis on this factor I am left with no alternative but to prima facie express my view that the timing of the incident and the history of the claims of the protected status by the respondent No.3 and the proximity of the incident i.e., within 4 days of the interim order passed by this Court does lend some credence to the respondent's version of the dubious nature of assault. The interim order was passed by this Court on 30th May, 2001 protecting respondent No.3's services and it appears that only upon the knowledge of the said interim order protecting respondent No.3's services and during adjudication of his application claiming protected workmen status, that the incident of assault on the nurse is said to have occurred. It is curious indeed that a workman who secured an interim order protecting his services would within a couple of days indulges in molestation of a co-employee. However, I need say no further on this account as the dismissal is challenged in other proceedings.



9. The case of the respondent No.1 in law is based upon a judgment of the Division Bench of the Gujarat High Court in R. Balasubramaniam & Others Vs Curborandum Universal Ltd., reported as LLJ-I 1978 423. Counsel for respondents has stressed on para 6 & 7 of the above judgment holding as follows:-

"6. It is true that if the employer refuses to recognize on the relevant ground failing under Section 33(4) and if a dispute arises, the statutory dispute has to be resolved under Rule 66(4) by reference to the conciliation officer concerned, whose decision is made final. This statutory reference is in the widest terms in respect of any dispute which may arise between the employer and any trade union in the matter connected with recognition of protected workmen under Rule 66. This dispute had even been resolved on the earlier occasion. The employer in the present case had, however, failed to carry out the mandatory obligation under Rule 66 (2) without any reason whatsoever and without giving any reply in that connection. The averments in para 8 of the petition are categorical that the employer never questioned the proposal of the union nor had raised any dispute within 15 days of the communication sent by the union; nor even thereafter at any time even before the conciliation officer. It is also categorically stated that there was no dispute which called for the decision of the conciliation officer and the petitioners ought to have been considered to have been recognized as protected workmen. These allegations were not controverted by any affidavit-in-reply. In fact, as earlier pointed out, there was nothing in the present case which could enable the employer to raise any such statutory ground of exception by recourse to the relevant provision of Section 33(4), because this was a case of a single union which was claiming protection for only the maximum number of five persons who were admittedly office-bearers. Therefore, there was no scope whatsoever for any dispute arising on the present facts and the employer was bound to give recognition to these five officers who were entitled to be recognized as protected workmen.



7.In such a case the employer can never by his mere failure to reply or to carry out the mandatory obligation of Rule 66(2) escape the statutory obligation which would arise in such a case. There being no objection what ever which could come under Section 33 (4), the employer being under a statutory obligation to give recognition as per the union's list of the maximum number of five officers under Rule 66(1), even in the absence of any express recognition, the recognition would have to be necessarily presumed....."





10. Reliance has also been placed by the learned counsel for respondent No.1 on a judgment of the learned Single Judge of this Court, Justice Vikramajit Sen in Sunder Lal Jain Hospital Karamchari Union (Regd.) vs Govt. of India & Ors. reported as 2002 LLR 17 and in particular para 8 & 9 which read as follows:-

"8. Returning to the facts of the present case it cannot be disputed that petitioner No.1 is admittedly a registered trade union and is connected with respondent No.2 and that petitioner Nos.2 and 3 are its office-bearers. It is also not in dispute that persons mentioned in the letter dated 15.04.1999 are unquestionably employees of respondent No.2. The management did not respond, leave alone record to express and objection/reservation to this letter. On the expiry of fifteen days, that is on 01.05.1999, it must be deemed to have not disputed and therefore recognized as protected workmen all the persons whose names were forwarded to it by Petitioner No.1. The only possible dispute that could have arisen is if the Association was also a registered trade union and had also proposed its own names of persons on its Executive or its Office bearers for the grant of protected workman status. This should also have been communicated by the Association to the Management within the month of April, 1999. The legal provisions do not envisage, admit or permit a reversal of roles, that is of the Management/Association proposing and the union/Association disposing. This is exactly what has transpired in the present case, assuming for the sake of argument that the Association is/was a registered trade union. Therefore, there is no premise for predicating that any dispute existed for the year commencing from April, 1999 and culminating in March, 2000.



9. In these circumstances I hold that it must be deemed that the Petitioner Nos.2 and 3 are protected workmen in this period. I am fully mindful that this precise relief has not been prayed for in the writ petition. Keeping the facts of the case and submissions made by the respective counsel it is necessary to mould the relief so that the ends of justice are satisfied. Extraordinary powers are vested in the High Court by Articles 226 and 227 of the Constitution for this very purpose. In this event the impugned order dated 01.02.2000 is bad both in fact and in law and is quashed. Consequently since the services of Petitioner Nos.2 and 3 were terminated contrary to Section 33 (2) of the Act, Respondent No.2 is granted seven days within which Petitioner Nos.2 and 3 should be reinstated with full back wages and continuity in their service. Thereafter law will take its course and Respondent No.2 would render itself vulnerable to prosecution also. The Petitioners shall be paid costs of Rs.5000/- by respondent No.2 for the reasons, inter alia that it has deliberately delayed these proceedings and its actions are wholly indefensible."



11. A perusal of the above judgments clearly indicate that the Division Bench of the Gujarat High Court held that by mere failure to apply or to carry out its mandatory obligation of Rule 66(now Rule 61), an employer cannot escape its statutory obligation. Similarly the learned Single Judge of this Court has also held that deemed protection to the workmen must be granted when the objection was not communicated within the prescribed time. Section 33(4) of the ID Act and Rule 61 of the ID Act reads as follows:-

"S. 33 (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.



61. Protected workmen.__(1) Every trade union connected with an industrial establishment to which the Act applies, shall communicate to the employer before the 30th September, every year, the names and addresses of such of the officers of the trade union who are employed in that establishment and who, in the opinion of the trade union, should be recognized as protected workmen. Any change in the incumbency of any such officer shall be communicated to the employer by the trade union within fifteen days of such change.



(2) The employer shall, subject to the provisions of sub s. (4) of S. 33, recognize such workmen to be "protected workmen" for the purposes of sub-s. (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 recognized 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 sub. s.(4) of S. 33, the employer shall recognize as protected workmen only such maximum number of workmen:



Provided that, where there is more than one trade union in the establishment, the maximum number shall be so distributed by the employer among the unions that the numbers of recognized protected workmen in industrial 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 each union the number of protected workmen allotted to it:



Provided further 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 recognized as protected workmen. Such selection shall be made by the union and communicated to the employer within 5 days of the receipt of the employer's letter.



(4) When a dispute arises between an employer and any trade union in any matter connected with the recognition of protected workmen under this rule, the dispute shall be referred to the conciliation officer concerned whose decision thereon shall be final."



12. The judgment of Hon'ble Supreme Court in Air India Corporation Vs V.A.Rebello reported as 1972- I LLJ 501 about the objects underlying Section 33 is germane and reads as follows:-

"The basic object of these two sections broadly speaking appears to be to protect the workmen concerned in the disputes which form the subject-matter of pending conciliation proceedings or proceedings by way of reference under S. 10 of the Act, against victimisation by the employer on account of raising or continuing such pending disputes and to ensure that those pending proceedings are brought to expeditious termination in a peaceful atmosphere, undisturbed by any subsequent cause tending to further exacerbate and already strained relations between the employer and the workmen. To achieve this objective a ban, subject to certain conditions has been imposed by S. 33 on the ordinary right of the employer to alter the terms of his employees' services to their prejudice or to terminate their services under the general law governing contract of employment and S. 33A provides for relief against contravention of S. 33, by way of adjudication of the complaints by aggrieved workmen considering them to be disputes referred or pending in accordance with the provisions of the Act. This ban, however is designed to restrict interference with general rights and liabilities of the parties under the ordinary law within the limits truly necessary for accomplishing the above object. The employer is accordingly left free to deal with the employees when the action concerned is not punitive or mala fide or does not amount to victimisation or unfair labour practice. The anxiety of the Legislature to effectively achieve the object of duly protecting the workmen against victimisation or unfair labour practices consistently with the preservation of the employer's bona fide right to maintain discipline and efficiency in the industry for securing the maximum production in a peaceful harmonious atmosphere is obvious from the overall scheme of these sections. Turning first to S. 33, sub-s. (1) of this section deals with the case of a workman concerned in a pending dispute who has been prejudicially affected by an action in regard to a matter connected with such pending dispute and sub-s. (2) similarly deals with such workmen concerned in regard to matters unconnected with such pending disputes. Sub-section (1) bans alteration to the prejudice of the workman concerned of the conditions of service applicable to him immediately before the commencement of the proceedings and discharge or punishment whether by dismissal or otherwise of the workman concerned for misconduct connected with the dispute without the express permission in writing of the authority dealing with the pending proceeding. Sub-section (2) places a similar ban in regard to matters not conducted with the pending dispute but the employer is free to discharge or dismiss the workman by paying wages for one month provided he applies to the authority dealing with the pending proceeding for approval of the action taken. In the case before us we are concerned only with the ban imposed against orders of discharge or punishment as contemplated by cl. (b) of the two sub-sections. There are no allegations of alteration of the complainant's terms of service. It is not necessary for us to decide whether the present case is governed by sub-s (1) or sub-s. (2) because the relevant clause in both the sub-sections is couched in similar language and we do not find any difference in the essential scope and purpose of these two sub-sections as far as the controversy before us is concerned. It is noteworthy that the ban is imposed only in regard to action taken for misconduct whether connected or unconnected with the dispute. The employer is, therefore, free to take action against his workmen if it is not based on any misconduct on their part. In this connection reference by way of contrast may be made to sub-s. (3) of S. 33 which imposes an unqualified ban on the employer in regard to action by discharging or punishing the workmen whether by dismissal or otherwise. In this sub-section we do not find any restriction such as is contained in cl. (b) of sub-s. (1) and (2) Sub-section (3) protects `protected workmen' and the reason is obvious for the blanket protection of such a workman. The Legislature in his case appears to be anxious for the interest of healthy growth and development of trade union movement to ensure for him complete protection against every kind of order of discharge or punishment because of his special position as an officer of a registered trade union recognized as such in accordance with the rules made in that behalf."



13. In the light of the above position, the facts of the above case has to be examined. The relevant date in the present case is January, 2002 when an application was made under Section 33 (4) of the ID Act by the respondent No.1 Union seeking the status of a protected workman for the period 30th April, 2002 to 30th April, 2003. It is significant that the respondent No.3 was also a protected workman for the previous year also and was granted interim protection by the Order dated 31st May, 2001, passed by the learned Single Judge in CWP.No.3686/2001. Rule 61 (2) of the ID Act is also relevant and reads as follows:-

"(2) The employer shall, subject to the provisions of sub s. (4) of S. 33, recognize such workmen to be "protected workmen" for the purposes of sub-s. (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 recognized as protected workmen [for the period of twelve months from the date of such communication]." [Emphasis supplied]



The aforesaid rule clearly indicates that the objection, if any, to the protected status sought by a workman have to be communicated by the management within 15 days. The provisions of Rule 61(2) clearly indicate that the recognition was subject only to Sub-section 4 of Sub-section 33. If the request under Section 61 (2) is not responded to it within 15 days by the employer, it will be the deemed that the workmen mentioned in the application begin to enjoy a protected status. In the present case, since the petitioner had not complied with the mandatory requirement of a stipulated response within the 15 days period, the respondent No.3 was entitled to be treated as a protected workman and therefore, no fault can be found with the impugned order dated 10th October, 2002. It is significant that even though the application was moved by the respondent No.1 under Section 33 (4) of the ID Act on 3rd January, 2002, no response was given within the 15 days time stipulated under Rule 61 by the petitioner. Significant indeed is the use of word `shall' in Rule 61 sub clause (2) which indicates the emergent and mandatory nature of a prompt reaction by the management.



14. A perusal of the above judgments shows that in R. Balasubramaniam's case (supra), it was held that once the proposal of the union was not questioned nor any dispute raised by the management within 15 days time of the communication sent by the union, then there was no dispute calling for the decision of the Conciliation Officer and the workmen ought to have been considered recognized as protected workmen. It was also held that an employer by mere failure to reply or to carry out the mandatory obligation of Rule 66(2) cannot escape the statutory obligation and recognition in such a case has to be necessarily presumed.



15. In Sunder Lan Jain Hospital Karamchari Union's case (supra), the learned Single Judge of this Court held that once a proposal of the union has not been responded to or objected to the legal provisions do not permit a reversal of roles, i.e., management proposing and the union disposing.



16. The Hon'ble Supreme Court in Air India's case (supra) has held that the legislature's anxiety is evident from provisions of Section 33 to effectively achieve the object of duly protecting the workmen against victimization or unfair labour practices consistently with the preservation of the employer's bona fide right to maintain discipline and efficiency in a harmonious atmosphere. It has been held in Air India' case (supra) by reference to Section 33 which imposes an unqualified ban on the employer in regard to action by discharging or punishing the workmen whether by dismissal or otherwise. It was also held that the legislature intended the interest of healthy growth and development of trade union movement to ensure the special position of an officer of a registered and recognized trade union. If the construction espoused by Shri Tripathi is accepted, then by merely delaying by one year the response to an application made by the Union, the management could frustrate the objection underlying Section 33(4). Such a construction could not have been intended by the legislature. One cannot lose sight of the fact that the protection sought was only for one year and consequently the lack of response within a fortnight clearly implied that the petitioner management was deemed to have accepted the proposal of the union espousing the protected status of its office holders.



17. Accordingly, there is no merit in the writ petition which stands dismissed with no order as to costs.

Sd/-

19th May, 2004 Mukul Mudgal, J.