Calcutta High Court
The Statesman Ltd vs First Industrial Tribunal on 19 May, 2011
Author: Pinaki Chandra Ghose
Bench: Pinaki Chandra Ghose
1
IN THE HIGH COURT AT CALCUTTA
IN APPEAL FROM ITS CONSTITUTIONAL
WRIT JURISDICTION
ORIGINAL SIDE
A.P.O. No. 292 of 2003
A.P.O.T. No. 284 of 2003
W.P. No. 1371 of 1999
THE STATESMAN LTD.
VS.
FIRST INDUSTRIAL TRIBUNAL, WEST BENGAL & ORS.
P R E S E N T:
The Hon'ble Justice PINAKI CHANDRA GHOSE
A N D
The Hon'ble Justice SHUKLA KABIR (SINHA)
For Appellant : Mr. Abhijeet Chatterjee, Sr. Adv.
Mr. Anindya Basu, Adv.
Mr. S. R. Saha, Adv.
For Respondents : Mr. Pradip Roy, Adv.
Heard on : 18.03.2011, 23.03.2011 Judgment on : 19.05.2011.
PINAKI CHANDRA GHOSE, J. : This appeal is directed against a judgment and/or order dated 25th April, 2003 in a writ petition being W.P. No. 1372 of 1999. The said writ petition was filed by the appellant, the employer herein, 2 challenging the validity and/or legality of the order passed by the learned Tribunal in respect of the workman who was considered by the learned Tribunal as 'Protected workman'.
The learned Tribunal held that the employer is guilty of doing unfair labour practice within the meaning of the 5th Schedule of the Industrial Disputes Act for which the employer can be penalized under the provisions of the Industrial Disputes Act.
The Hon'ble Single Judge after hearing the parties dismissed the writ petition on the ground that there is no infirmity and/or irregularity in respect of the order passed by the learned Tribunal and the Court did not interfere with the said order and dismissed the writ petition.
The facts of the case briefly are as follows:-
The Government of West Bengal, Labour Department, referred one industrial dispute for adjudication by the First Industrial Tribunal vide Order No. 1648 - IR dated 15th December, 1998 under Section 10 of the Industrial Disputes Act. The said reference is still pending for adjudication. During pendency of the said reference, the respondent No. 2, Sri Arani Mukhopadhyay along with one fellow employer, Sri Santosh Kumar Das, were dismissed by the Statesman Limited. Sri Arani Mukhopadhyay is the Vice-President of the Statesman Clerical Staff Union whereas Sri Santosh Kumar Das is the President of the said Union.3
The employer company filed an application under Section 33(2)(b) of the Industrial Disputes Act before the Tribunal for approval of the said dismissal order. The said application was dismissed by the learned Judge, First Industrial Tribunal, West Bengal.
At that point of time, the learned Tribunal held that the writ petitioner No.
2 is a protected workman within the meaning of the Industrial Disputes Act and rules framed thereunder. Therefore, it is held by the Tribunal that prior approval was required to be obtained under Section 33(3) of the Industrial Disputes Act in case of a protected workman before issuance of an order of dismissal. The Tribunal held that without obtaining such prior approval there is no question of issuing order of dismissal against the respondent No. 2. Hence, the application under Section 33(2)(b) of the said Act was dismissed by the Tribunal. The appellant, being aggrieved filed a writ petition challenging the said order on the ground that the respondent cannot get any benefit as 'Protected Workman'. The said writ petition was dismissed by the Hon'ble Single Judge.
Being aggrieved this appeal has been filed.
Mr. Abhijeet Chatterjee, learned Senior Counsel appearing on behalf of the appellant contended that the said respondent No. 2 is not a 'protected workman' within the meaning of the said Act and as such it is not necessary to take any prior approval in terms of Section 33(3)(b) of the said Act. He further stated that 4 there is no violation of any provision by the appellant company. According to him, mere communication of the names and addresses of the office bearers of the union to the employer in compliance with Rule 71(1) of the West Bengal Industrial Rules, 1958 is not sufficient to declare him as a 'protected workman'. It is necessary that some positive action also to be taken by the employer in respect of granting him a recognition as a 'protected workman'.
He further submitted that if the employer remains silent in granting such recognition to the list of workmen submitted by the union under Rule 71(1) as 'protected workmen' within the requisite time period even then, it cannot be said that those workmen would automatically become protected workmen.
He also contended that workmen concerned have specific remedy under the statue in the aforesaid circumstances under Rule 71(5) of the said rules, but such remedy has not been availed by the workmen.
On the contrary, learned Counsel appearing on behalf of the respondent is submitted that by default employer cannot set at naught the statutory protection given to the protected workmen. Section 33(3) of the said Act provides a blanket protection to a protected workman. The protected workman would get complete protection against any kind of order of discharge or punishment because of his special position as an officer of a registered trade union. 5
He further contended that the employer could refuse to accord recognition to the respondent workman as protected workman only on the ground that by granting such recognition total number of protected workmen in the establishment would exceed the prescribed number of protected workmen admissible for the said establishment under Section 33(4) of the Industrial Disputes Act.
It is contended that the said provision is a mandatory provision and the recognition to protect workmen has been left to the choice of the concerned trade union and not with the employer under the said Act and rules. The examinations on the part of the workman would only need to allow the benefit of recognition to the protected workman.
It is submitted that the employer cannot make the provisions relating to grant of recognition to the protected workmen nugatory by merely refusing to respond to the communication of the union made under Rule 71(1). Reliance has also been made by him in the case of R. Balasubramanian and Ors. Vs. Carborundum Universal Ltd. reported in 1977 Lab. IC 826.
We have noticed that in the decision of R. Balasubramanian (Supra) the Court considered an identical issue under similar circumstances and observed as follows:-
6
"4. A bare perusal of Rule 66 shows that under Clause (1) every trade union connected with the establishment to which this Act applies has to communicate before 30th September every year, names and addresses of its officers employed in this establishment whom it chooses for being recognized as such protected workmen. Thereafter if there is any change in incumbency of such officer, the employer has to be communicated this fact within 10 days of the change by the trade union. Therefore, sub- clause (1) of rule 66 gives a choice to the union to select officers who should be recognized as protected workmen and casts an obligation on the trade union that before 30th September every year the names and addresses of these officers shall be communicated to the employer Rule 66(2) then provides a duty on the employer is required to communicate to the union in writing the list of such recognized protected workmen within 15 days of the receipt of the names and addresses from the trade union under Rule 66 (1)."
"5. If these two clauses in rule 66 are read together the whole scheme becomes abundantly clear that the choice of the individual officers who are to be recognized as protected workmen has been left to the concerned trade union as it alone can determine which officers need this statutory protection contemplated under Section 33(3). Once this communication of the union's choice before the requisite date of 30th September every year is sent to the employer Rule 66 casts a mandatory obligation that the employer shall recognize these workmen as protected workmen, subject to the statutory provision made in Section 33(4). In view of the mandatory language of Rule 66(2), the employer can refuse to recognize these protected workmen only if he can bring the case within the statutory grounds provided in Section 33(4). In section 33(4) a provision is made that the recognition shall be of persons who are executive members or other office bearers to the extent of only one percent of the total number of workmen employed, subject to the minimum of five 7 protected workmen and the maximum number of five protect3ed workmen and the maximum number of 100 protected workmen. Another requirement of section 33(4) is that when there are various trade union, the employer has a right of distribution and allotment of the number of protected workmen as provided in rule 66(3). Therefore, the only limited statutory right which the employer has when the demand in case of a single trade union is for protection of its office bearers, is that if it is in excess of the maximum under Rule 66(3) the employer shall recognize only the maximum or such protected number of workmen as provided under Section 33(4). The other right that the employer has is in cases where there are more than one trade union in the establishments, as the employer has a right to allot the number of protected workmen in the same proportion as of the membership of the concerned unions, as he has to intimate in writing to the president or secretary of each union as the number which has been allotted to the particular trade union. There is further provision in Rule 66(3) that if the number of the protected workmen allotted by the employer in such case falls short of the number of the number of officers of the union seeking protection, the union shall be entitled to select its officers to be recognized as protected workmen and in that event, such selection by the union shall be communicated to the employer within 15 days of the receipt of the employer's letter. That contingency did not arise in the present case because admittedly this was the only union. Similarly, the recognition was claimed only for five persons who were admittedly office bearers and the number did not exceed the statutory maximum provided under Section 33(4). Therefore none of the statutory grounds on which the employer could object to the choice exercised by the concerned trade union existed in the present case and therefore, the exception of Section 33(4) being not attracted to the present case the employer under Rule 66(3) had the mandatory obligation to recognize these five office bearers whom the union had selected and he was bound to communicate recognition of these officers as protected 8 workmen within 15 days period from the date of the receipt of the present application on September 29, 1972."
We have also noticed Rule 66 of the Industrial Disputes (Bombay) Rules, 1947, which is similar to Rule 71 of the West Bengal Industrial Disputes Rules 1958 which is applicable in the present case.
Therefore, it is submitted that the workmen should get benefit and to be recognized as 'protected workmen'.
Our attention has also been drawn to the Order No. 7 dated 19th May, 1999 passed by the learned Tribunal which is set out hereunder:-
"It is also admitted position of both the parties that following the provisions of Rule 71(1) of the W.B.I.D. Rules the said union informed the names of the Office Bearers and the names of the protected persons vide letter dated 30.05.1998. The Company duly received such letter putting signature in the peon Book but the company has not made any communication to the union following the provisions of Rule 71(2) of the W.B.I.D. Rules."
Before we proceed further, the provision of the said Section 33 of the Industrial Disputes Act and Rule 71 of the West Bengal Industrial Rules, 1958 are set out hereunder:-
"Sec. 33 Conditions of service, etc to remain unchanged under certain circumstances during pendency of proceedings:9
(1) During 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 he prejudice of the workman 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 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; 10 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 purpose 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 recognized as such in accordance with rules made in this behalf.
(4) In every establishment the number of workmen to be recognized as protected workmen for the purpose of Sub-section (3) shall be one percent of the total number of workman employed therein subject to a minimum number of five protected workmen and a maximum number of the hundred protected workmen and for the aforesaid purpose, the appropriate Government may 11 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 recognized as protected workmen.
(5) Where an employer makes an application to a conciliation officer, Board (an arbitrator, a Labour Court 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."
Rule 71. Protected Workmen. - (1) Every registered trade union connected with an industrial establishment to which the Act applied, shall communicate to the employer, before the 30th September 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 workman. Any change in the incumbency of any such officer shall be communicated to the employer by the union within 15 days of such change.
(2) The employer shall, subject to Section 33 a Sub-section (4) recognize such workmen to be protected workmen for the purpose of sub-section (3) of 12 the said section 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'.
(3) Copies of communication under Sub-rule (1) and (2) shall also be sent to the Labour Commissioner and the Conciliation Officer concerned.
(4) Where the total number of names received by the employer under Sub-
rule (1) exceeds the maximum number of the protected workmen, admissible for the establishment, under Section 33, Sub-section (4) the employer shall recognize as protected workmen only such maximum number of workmen:
Provided that were 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 number of recognized protected in the 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. A copy of this letter shall also be sent to the Labour Commissioner.
Provided further that where the number of protected workmen allotted to a union under this Sub-rule , fails 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.
(5) When a dispute arises between an employer and any registered trade union whether a particular workman should be recognized as protected 13 workman or not the dispute shall be referred to the Labour Commissioner whose decision thereon shall be final."
After examining the said provision of the Act and Rules, we find that under Rule 71(5) when a dispute arises between an employer and any registered trade union on the issue, whether a particular workman should be recognized as a protected workman then the dispute shall be referred to the Labour Commissioner whose decision thereon shall be final. But it appears to us that in the instant case no dispute ever raised by the employer.
On the contrary, it is admitted that employer got the letter from the union but did not reply thereto. In our considered opinion, such action on the part of the employer cannot nullify the right of the workmen to enjoy the benefit as 'protected workmen' under the said rule can be taken away. It was the duty of the employer, in terms of Section 33 of Sub-section 4 of the said Act to write to the union or to give reply to the union within 15 days on the receipt of the names and addresses under 71(1) of the said Rule. But it appears that employer did not raise any objection or replied the said letter. At this stage in our considered opinion, the employer, appellant has waived their rights to raise any objection in respect of such declaration by the union declaring the respondent No. 2 herein as 'protected workman' under the Statutory Rules. It is not the case of the employer that the number of protected workmen were allowed to the said union under the Rule 71(4) is more than the workman. It is not also the case of the employer that protected workman violates any rules and recognition. Therefore, in our 14 considered opinion, the appellant has failed to act in accordance with the provisions of law. The order of the Hon'ble Single Judge, in our opinion, does not suffer from any illegality or irregularity. We do not find any merit in this appeal.
For the reasons stated hereinabove we affirm the order passed by the learned Single Judge and dismiss this appeal.
Photostat certified copy of this judgment, if applied for, be supplied to the parties.
(PINAKI CHANDRA GHOSE, J.) I agree.
(SHUKLA KABIR (SINHA), J.)