JUDGMENT
Vikramajit Sen, J.
1. The Petitioner, which is stated to be a duly registered Trade Union, is aggrieved by the non-declaration of protected-workman status to its Vice President (Mohd. Shakir, Petitioner No. 2) and its General Secretary (Karam Singh, Petitioner No. 3) for the relevant year commencing from 1999-2000. It is contended that there has been a violation of the provisions of Section 33 of the Industrial Disputes Act, 1947 (Act in short) and of Rule 61 of the Industrial Disputes Act (Central) Rules, 1957 (Rules in short).
2. The petition came up for hearing on 12.7.2000 and the Respondent was allowed four weeks time for filing its Reply. An extension of time for filing the Reply was requested for on 8.11.2000 and two weeks time was granted, subject to payment of Rs. 1000/- as costs. When the writ petition again came up for hearing on 26.2.2001 a final opportunity to file the Counter Affidavit was granted. Today it has been stated by learned counsel for Respondent No. 2 that the Counter Affidavit has already been filed. From a perusal of the records it is learnt that the Counter Affidavit was filed on the Saturday (24.2.2001) immediately previous to the hearing on Monday (26.2.2001). A copy of the Counter Affidavit was not served on counsel for the Petitioner either on 26.2.2001 or on any date thereafter. Mr. Umesh Sharma learned counsel for the Petitioner states that he has no knowledge of the filing of the Counter Affidavit of which he has not been served a copy, and objects to its being taken on record since its filing was permitted by Hon’ble Madan B. Lokur, J. subject to payment of Rs. 1000/- as costs and these costs have not been paid. Regretfully, the Counter/Reply was not even dispatched by post, at the time of its filing. Mr. Ajay Kumar, counsel for Respondent No. 2 prays for one week’s time for payment of costs. The prayer is rejected. It is palpably clear that the intention of Respondent No. 2 is to delay proceedings. Mr. Sharma submits that the services of the Petitioner Nos. 2 and 3 have now been terminated, and the delaying strategy was employed with this malafide purposes in mind. In these circumstances, the Reply/Counter filed by Respondent No. 2 will not be considered. In consequence, the averments contained in the writ petition are deemed to have been admitted.
3.
The facts are as follows. The Petitioner addressed a letter dated 15.4.1999 to the Sunder Lal Jain Hospital, Respondent No. 2 (Hospital) containing the request for acceptance of the five workmen named therein (including Petitioner Nos. 2 and 3) as protected workmen for the year 1999-2000. The letter failed to evoke any response from the Management. A claim petition under Section 33(4) of the Industrial Disputes Act (hereinafter referred to as ‘the Act’) was filed on 6.7.1999. However, it is averred that the proceedings were adjourned time and again without any reason. In this interregnum the Management/Respondent No. 2 addressed a letter dated 12.11.1999 to the Secretary, Govt. of NCT of Delhi to the following effect:
“Sir,
The management is pleased to declare and inform you that the following workmen of the Hospital as Protected Workmen as required under the Industrial Disputes Act, 1947 and the rules framed there under till March, 2000.
1. Mrs. Darshan Rani Ahuja.
2. Mr. B.B.S. Chandel.
3. Mr. Sanjay Pandey.
The above workman belong to Sunder Lal Jain Hospital Staff Association which enjoys the majority of the staff. The management of the Hospital is convinced that these workmen enjoy the confidence and represent the majority of the staff of the Hospital. They thus possess the representative character of its staff members.
If in case more information is required we shall be glad to furnish the same at our earliest and oblige.”
4.
The Petitioners filed a rejoinder dated 18.12.1999 before the Conciliation Officer/Labour Officer drawing the attention of the latter to Section 33(3) of the Act. It was stated that the Sunder Lal Hospital Staff Association was not a registered trade-union and did not have any existence or membership inside the Hospital. It was also mentioned that the Management was contemplating the dismissal of Petitioner Nos. 2 and 3 and hence a decision, should be taken urgently. Eventually, by his Order dated 1.2.2000, Shri M.K. Gaur, Conciliation & Labour Officer, declined to ‘declare’ Petitioner Nos. 2 and 3 as protected workmen. Instead he declared the three persons of the Association whose names were forwarded by Management/Hospital for the first time on 12.11.1999, quite apparently on gaining knowledge/notice of the proceedings before the Labour Officer. Two persons from the Union, viz its President and Joint Secretary were declared as protected workmen by this officer, Shri M.K. Gaur, who appears to have been dealing with the case from its inception. In the impugned order it has also been stated that since disputes were pending between the Management and Petitioner Nos. 2 and 3 “hence at this level it is not proper to declare these two workers as protected workmen.” As was apprehended and feared by the Union, the services of Petitioner Nos. 2 and 3 have now been terminated. The ignoring of the forewarning of Shri M.K. Gaur to this effect has proved fatal to the Petitioners.
5. The legal provisions which are attracted in the circumstances of the present dispute are Section 33(3) and (4) of the Act and Rule 61 of the Industrial Disputes (Central) Rules, 1957 (Rules) which are reproduced for ease of reference.
“33(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, it 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 registered trade union connected with an industrial establishment, to which the Act applies, shall communicate to the employer before the 30th 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 recognised as “protected workmen”. Any change in the incumbency of any such officer shall be communicated to the employer by the union within fifteen days of such change.
(2) The employer shall, subject to section 33, sub-section (4), recognise such workmen to be “protected workmen” for the purposes of sub-section (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 recognised 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 section 33, sub-section (4), the employer shall recognise as protected workmen only such maximum number of workmen:
Provided that where there is more than one registered trade union in the establishment, the maximum number shall be so distributed by the employer among the unions that the numbers of recognised protected workmen in individual 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 the union the number of protected workmen allotted to it:
Provided further that 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 recognised as protected workmen. Such selection shall be made by the union and communicated to the employer within five days of the receipt of the employer’s letter.
(4) When a dispute arises between an employer and any registered trade union in any matter connected with the recognition of ‘protected workmen’ under this rule, the dispute shall be referred to the any Regional Labour Commissioner (Central) or Assistant Labour Commissioner (Central) concerned, whose decision thereon shall be final.”
6.
The interests of capital and labour are poles apart and while industrial peace and harmony are conducive to the welfare of both, seldom do they tread the same path. Over a century ago, even when the laissez faire policy was quite fashionable and acceptable, it was realized that capital and labour, or employer and employee, have competing and conflicting aspirations and in the event of a conflict between them, protection is necessary for the workmen. The species of “protected workmen” was thus conceived by the legislature as it was rightly realized that the persons who took on the onerous task of fighting for the rights of their fellow workers and espousing industrial disputes would immediately incur the wrath of the employees and these persons would immediately be targeted and/or pressurized in diverse designs by the Management. Therefore Parliament in its wisdom and experience thought it essential that these persons should be given added protection from termination of their services of their victimization by overt or covert machinations. These protections have been devised and articulated in the Sections and Rules mentioned above. The contention of the Learned Counsel for the Petitioner is two-fold – (a) that the Conciliation & Labour Officer does not have the power to dispose of the petition as has been done by him in the impugned order, since these powers can be exercised only by any Regional Labour Commission (Central) or Assistant Labour Commission (Central) concerned; and (b) that since the Association is not a registered trade-union the three persons recognized by the Management were not eligible for grant of the protected workmen status. Learned Counsel for the Respondents states that his arguments are confined to those contained in the impugned order, which he asserts is correct.
7.
The following principles can be distilled from the legal provisions-
(1) To qualify for special protection the person should belong to a registered organisation/union connected with the establishment. This is to obviate and eradicate the propping-up of a puppet body by the Management. [Explanation of Section 33(3)] an Rule 61(1).
(2) The persons concerned must also be a member of the executive or other office bearer of such registered union [explanation of Section 33(3)]
(3) The Union must not only be a registered one, but should also be recognised as an entity connected with the establishment in accordance with rules made in this behalf. This stipulation in actual effect is ‘management friendly’ since outside or unconnected unions would tend to be discouraged from meddling in the affairs of the establishment. However, the scope of ‘recognization’ does not admit of any arbitrary discretion, and the Management is not expected to act in a malafide manner in refusing recognition to genuine union connected with its affairs.
(4) It is conceivable, and is a common occurrence, that there may exist more than one union connected with the concerned establishment, all or some of which may genuinely represent the workforce. There may well be a union which is on friendly terms with the Management or is its stooge or dummy. In all these situations, the sharing or farming out of protected workmen status is to be governed by Section 33(4). But, quite obviously such a distribution cannot be made in favor of any entity which is not a registered trade union. Nor can the request of a genuine Union be denied/ignored by exhausting the grant of this protection by bestowing it in a malafide and self serving manner to a friendly union. The Administration should take care to ensure that protection is extended where it is needed and not dissipated by distribution to persons who would not require protection because of their friendship towards and alignment with the Management.
(5) The choice by the Union of the persons nominated by it should be made with a view to protect the interests of the workforce and not to shield the nominee from punitive action for a misdemeanour already committed by him, unrelated to the labour movement/cause.
(6) The particulars of the persons who are nominated by the Union for such status must be communicated to the establishment within the month of April for protection in the immediately following year. A change in the incumbency must be communicated within fifteen days of such change. [Rule 61(1)].
(7) The employee must convey its recognition within fifteen days of the receipt of the names proposed by the Union for the period between April and March. [Rule 61(2)]. Where there are multiple unions and therefore a selection/recognition is essential, the employer must conform with Section 33(4). Where no response is made by the Management within this period, its approval should be deemed.
(8) If a dispute arises between the employer and any registered trade union in regard to the status of ‘protected workmen’ it shall be referred for the decision of any Regional or Assistant Labour Commissioner (Central) or any other Officer to whom these powers are delegated.
(9) A dispute cannot obviously exist if the employer does not raise any within the stipulated period of fifteen days from the receipt of the names forwarded by the concerned union. A dispute cannot also conceivably exist if there is only one registered trade union and the persons nominated by it do not exceed the maximum number, except in the event that some or any of these nominees is/are not employee(s) of the establishment. However, if the Management has recorded its objections to the proposed names, the list would not be binding on the Management. Reference to the pronouncements of the Hon’ble Supreme Court in P.H. Kalyani v. Air France, Calcutta, , would be of advantage. The Court was of the opinion “that the question whether a particular workman is a protected workman or not is a question of fact, and the finding of the Labour Court on such a question will generally be accepted by this Court as conclusive. Besides, the Labour Court has pointed out that the mere fact that a letter was written to the Manager of the respondent-company by the Vice-president of the union in which the name of the appellant was mentioned as a Joint Secretary of the union and the Manager had been requested to recognise him along with others mentioned in the letter as protected workmen would not be enough. The company had replied to that letter pointing out certain legal defects therein and there was no evidence to show what happened thereafter.”
(10) The ‘dispute’ cannot partake of a general character and include an issue extraneous to the representative character of the nominee for protected workmen status. The management may not want to recognize a virulent, aggressive or ‘troublesome’ trade-unionist, but if all the concomitants mentioned above are present, it does not have any choice in the matter. The only arguable exception may be where a particular person is nominated by the union so as to insulate and immunize him from proposed disciplinary action for an individual misdemeanour. But this exception may run aground if the punishment is connected with any incident of a genuine trade-unionist flavour. Since this question has not arisen in the present case, this overview should be sufficient. The entire purpose of granting protection to a trade-unionist would be defeated if the Management is allowed to reject a nomination for oblique motives. The pendency of disciplinary proceedings against the nominee for alleged failure to report for duty, as in the present case, cannot constitute reason to refuse him recognition. There is every possibility that such a charge may be initiated against an inconvenient or implacable candidate. The list proposed by the Union was submitted on April 15, 1999, and it is indeed remarkable that the Management has conveniently alleged before the Conciliation Officer that Petitioner Nos. 2 and 3 had not reported for duty from that day onwards. The course that should be obvious to any person is to investigate whether this objection had been raised by the Management immediately. On any consideration of the matter, this ground is not so compelling that the statutory protection devised for office-bearers of the Unions should have been circumvented and frustrated. It would fall in the genre of matters extraneous to the question of protected status.
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 15.4.1999 are unquestionably employees of Respondent No. 2. The Management did not respond, leave alone record or express and objection/reservation to this letter. On the expiry of fifteen days, that is on 1.5.1999, 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 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 precis 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 1.2.2000 is bad both in fact and in law and is quashed. Consequentially 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 ala, that it has deliberately delayed these proceedings and its actions are wholly indefensible.
10.
I feel constrained and compelled to observe that because of the manner in which Shri M.K. Gaur, Conciliation & Labour Officer, has conducted the case a grave miscarriage of justice has occurred. Each of the conclusions in the impugned order are unsustainable in law. He has allowed the matter to remain pending inordinately, and has ignored the plaintive cries and submissions contained in their rejoinder dated 18.12.1999 that the Management was contemplating the dismissal of Petitioner Nos. 2 and 3. His procrastination had compelled these workmen to complain against him on 10.1.2000 and 27.1.2000 to Respondent No. 1. This Respondent, namely, Secretary Labour, Govt. of NCT of Delhi is directed to institute an enquiry into whether the impugned order dated 1.2.2000 was only a consequence of misconception of law of Shri M.K. Gaur, or whether he was partisan and biased. The Report should be forwarded to the Registrar of this Court on or before November 15, 2001.
11.
The petition is allowed in the above terms.