India: Karnataka High Court Provides Clarity on the Recognition of “Protected Workmen”

Authors: Avik Biswas, Ivana Chatterjee, Animay Singh

In the case of M/s. Armstrong Design and Acmite India Manufacturing Private Limited v. The Assistant Labour Commissioner, a petition was filed before the Karnataka High Court challenging the Assistant Labour Commissioner’s (“ALC”) decision to confer “protected workman” status on a workman found guilty of misconduct.

The workman in this case had been served with a show-cause notice pursuant to a departmental enquiry report wherein observations relating to misconduct had been made. In the interim, the petitioner establishment’s registered trade union submitted a letter to the petitioner seeking recognition of some of its officers as ‘protected workmen’ and included the above workman’s name therein. Before the petitioner could respond, the registered trade union approached the ALC,  requesting that they decide upon the request raised in the above letter. Following this, the workman submitted his reply to the show-cause notice and after taking this into consideration, the petitioner’s disciplinary authority dismissed the workman from his services.

The petitioner’s establishment applied under Section 33(2)(b) of the Industrial Disputes Act, 1947 (“Act”), seeking approval of the order of dismissal. While the application was pending, the ALC passed an order directing the petitioner to recognize the workmen mentioned in the registered trade union’s application as ‘protected workmen’ for the years 2023-24. Notably, this list of workmen also included the workman who had been dismissed. The ALC’s decision was based on the reasoning that the workman guilty of misconduct had neither faced charges pertaining to a serious offence nor been convicted by a court of law.

Under Section 33 of the Act, a “protected workman” is a workman who is an elected officer of an establishment’s registered trade union, who, upon a written request from such union, is recognized by the employer as a “protected workman.” During the pendency of any proceedings pertaining to an industrial dispute, employers are barred from taking any action against any protected workmen involved in such dispute without the express written permission of the authority before whom the industrial dispute is pending.

Protected workmen have privileged status with respect to employer actions during the pendency of an industrial dispute. Their service conditions cannot be altered prejudicially, and they cannot be discharged or dismissed, except with the express permission of the concerned authority as mentioned above. The object behind this is to ensure that they can take up the workmen’s and/or their union’s causes with their employer, without fear of reprisal or victimization.

As per Section 33(4) of the Act, every establishment, upon a written request submitted by its registered trade union, must recognize at least five “protected workmen,” with a maximum of hundred “protected workmen” prescribed under the Act. However, where an establishment has more than one registered trade union, this prescribed maximum must be distributed by the employer amongst the registered trade unions to ensure that the representation of protected workmen is proportional to the membership figures of the unions.

In this case, the question before the Karnataka High Court was whether the ALC was correct in conferring “protected workman” status on a workman found guilty of misconduct. The Karnataka High Court held that an employee found guilty of misconduct cannot be considered for recognition as a “protected workmen” under the Act and set aside the ALC’s order.

Some of the critical observations made by the Court are as follows:

• While seeking “protected workman” status for its office bearers, a trade union is duty bound to furnish details sought by an employer and cannot refuse to do so.
• There is no automatic recognition of a workman as a “protected workman” and employers are vested with discretion to provide such recognition based on a workman’s behaviour and conduct.
• Since “protected workman” status offers a safeguard to certain office bearers of a trade union that is not available to other workmen, employers have every right to ensure that this status is not misused and is provided to genuine persons only.
• If a workman is found guilty in respect of allegations evaluated during disciplinary proceedings, or if criminal proceedings are initiated against them, employers are entitled to deny “protected workman” status to them.
• Even if a workman has committed minor offences, their registered trade union’s request for “protected workman” status can be denied.
• The court observed that allowing workmen with poor conduct or questionable behaviour to become “protected workmen” would set a bad precedent, leading to the use of privileged status to escape from wrongdoing.

Key Action Points for Human Resources and In-House Counsel

While examining written requests raised by their registered trade unions for recognition of workmen as “protected workman,” employers should consider their behaviour and conduct before accepting any such request. For this, employers can seek relevant information and particulars from their registered trade union(s) to evaluate whether the officers whose names have been submitted for recognition, were elected/appointed in accordance with rules of such trade union(s). Employers should also note that they have the discretion to deny a request for “protected workman” status if there are sufficient causes underlying their refusal.