Tata Marcopolo Motors Limited Vs. The Tata Marcoplo Kratikarikarmika Union Near Charantimath Garden - Court Judgment

SooperKanoon Citationsooperkanoon.com/1232511
CourtKarnataka Dharwad High Court
Decided OnMar-17-2023
Case NumberWP 100208/2023
JudgeM.I.ARUN
AppellantTata Marcopolo Motors Limited
RespondentThe Tata Marcoplo Kratikarikarmika Union Near Charantimath Garden
Excerpt:
- 1 - wp no.100208 of 2023 in the high court of karnataka, dharwad bench dated this the17h day of march, 2023 r before the hon'ble mr justice m.i.arun writ petition no.100208 of2023(l-res) between: tata marcopolo motors limited beluru industrial area garag road, mummigatti tq. and dist. dharwad represented by its ceo shri laxmiprasad s/o pradyumna jahagirdar …petitioner (by sri. s. n. murthy, sr. advocate for sri.shivakumar s. badawadagi, advocate) and:1. the tata marcoplo kratikari karmika union near charantimath garden r r colony, 2nd cross hosayallapur tq. and dist. dharwad represented by its general secretary2 the deputy labour commissioner and conciliation officer, belagavi division belagavi. …respondents (by sri.sanjay singhvi, sr. advocate for sri. rajshekhar burji, advocate for r1; sri. shivaprabhu hiremath, aga for r2) --- - 2 - wp no.100208 of 2023 this writ petition is filed under articles226and227of the constitution of india, praying to issue a writ in the nature of certiorari thereby quashing the order dated2012/2022 passed by the2d respondent in bearing no.ukaabe/ida/sr- 02(1)/2022-23/3878 and the copy of the same is produced and marked as annexure-n to the writ petition and consequently be pleased to dismiss the application filed by the1t respondent on the file of2d respondent in the interest of justice and equity. this petition, coming on for further hearing, this day, the court made the following: order1 the petitioner is a registered company and has one of its factory in belur industrial area, dharwad. some of its employees are members of the 1st respondent trade union. the 1st respondent requested the petitioner to recognize certain office bearers of the union as protected workmen. as the petitioner did not recognize the members proposed by the 1st respondent as protected workmen, it approached the 2nd respondent for necessary orders. the 2nd respondent after hearing the petitioner and the 1st respondent, has - 3 - wp no.100208 of 2023 passed the impugned order dated 20.12.2022 bearing no.ukaabe/ida/sr-02(1)/2022-23/3878 vide annexure-n to the writ petition, recognizing 11 persons as protected workmen. aggrieved by the persons at sl.no.2, 4, 7 and 11 in the list being given the status of protected workmen, the petitioner has preferred this writ petition. with regard to other persons, petitioner has no objection for them being recognized as protected workmen.2. the case of the petitioner is that, disciplinary proceedings are initiated against persons at sl.no.2 and 4 of the list, namely, sri. shivayogi halabhavi and sri. veeresh patil and the said proceedings are pending against them. it is further submitted that, disciplinary proceedings were initiated against persons at sl.no.7 and 11, namely, sri.mahantesh navani and sri.rajashekhar and they were dismissed from service. however, they have been ordered to be reinstated by the labour court, but, the order of the labour court has been challenged before this court by way of writ petition and an interim order has been passed staying the order of reinstatement passed by the labour court. for the said - 4 - wp no.100208 of 2023 reasons, it is submitted that the 2nd respondent erred in according the said persons a status of protected workmen at the behest of the 1st respondent.3. per contra, the 1st respondent submits, proceedings initiated against the said workmen have not reached finality and they continue to be the workmen for the purposes of the industrial disputes act, 1947 (hereinafter referred to as ‘the id act’, for brevity), and in some cases, charges have been leveled after a request was made that they should be declared as protected workmen and in some cases, they were recognized as protected workmen in the previous year even though charges were pending against them, but it has been objected in the current year and for that reason, it is prayed that the writ petition be dismissed.4. section 33(3 &4) of the id act reads as under: “33. conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.- (1) xxxxxxxxxx (2) xxxxxxxxxx - 5 - wp no.100208 of 2023 (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.” - 6 - wp no.100208 of 2023 5. rule 61 of the industrial disputes (central) rules, 1957 reads as under: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 - 7 - wp no.100208 of 2023 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. there is no provision under the id act or the rules made therein, which imposes a condition that, the workmen can be denied the special status of a protected workmen, if he/she is facing any disciplinary proceedings or charges under criminal law. however, there have been judgments wherein such restrictions are imposed. the present case needs to be considered in the light of the said judgments.-. 8 - wp no.100208 of 2023 7. in m/s. fouress engineering (india) ltd., vs. fouress engineering karmika sangha and another, reported in ilr2013kar1531 paragraphs 14 and 15 reads as under:14. in the light of what is stated above, when the recognition of a workman as a `protected workman' is not automatic, a certain amount of discretion is conferred on the employer to recognize or not to recognize a workman as a `protected workman'. such a discretion cannot be exercised by him according to his whims & fancies. if he chooses to recognize a particular workman as `protected workman' probably the employer need not give any reasons, but if he wants to deny such a right to a workman or to the union which has made the request, there should be a sufficient cause for refusing recognition. if a workman is dismissed from service on the ground of gross misconduct, it is in the interest of the industry and the workmen, such persons are not given the benefit or a privilege to indulge in such misconduct. otherwise, law abiding workmen would get frustrated. similarly, if a person is charged with a criminal offence and facing criminal trial, if such person is given the status of `protected workman' it only encourages people to indulge in such illegal activities. the whole object of conferring such a status of `protected workman' is to see that they espouse the cause of workmen while dealing with the management without any fear - 9 - wp no.100208 of 2023 of reprisal. if persons who are already indulged in such act or given the status it would send wrong signals. in those circumstances, if a management in order to maintain industrial peace refuses to recognize them as `protected workmen' they cannot be found fault with. when a trade union makes such a request, they should see that the persons to whom such protection is sought are law abiding workmen, who can fight for the cause of the workmen and who do not indulge in illegal activities. therefore, a positive act specifically recognizing an employee as a protected workmen is required to be taken by the employer. there is an element of discretion vested with the employer in order to protect the interests of the industry and maintain industrial peace which is in the interest of the workforce. therefore, the rejection of the request for granting the status of a protected workmen either on the ground that there are criminal cases pending against them or on the ground that they are dismissed from service is a good ground and such an action cannot be found fault with.15. in the instant case, the union came into existence in the year 1988. on 15.6.1989 there was a strike in the second respondent-establishment. the workers were incited to strike, stop work and go slow. there was also riotous or disorderly behaviour within the factory premises. there was intimidation, assault of workmen or staff or superior who wanted - 10 - wp no.100208 of 2023 to attend the work. it is in those circumstances criminal complaints were lodged against all the five persons on whose behalf the union made a request for the status of protected workmen. similarly, departmental enquiry was initiated against all of them. it is after the initiation of the departmental enquiry and criminal proceedings, an application was filed on 8.5.2000 requesting for recognizing these five persons as protected workmen. if the protection sought for had been given by the management then even if they were found guilty in the departmental enquiry, the management could not have proceeded against them without seeking the permission of the court, that is the object behind such request. the proceedings were concluded. two of the aforesaid five persons were dismissed from service on 27.1.2001 on the proved misconduct. because of the pendency of the departmental enquiry as well as criminal cases, the management not at all considered their request in respect of all the five persons. it is in those circumstances, the union approached the first respondent. the first respondent refused to extend the status of protected workmen in respect of the aforesaid two dismissed employees by its order dated 27.1.2001 though the said benefit was conferred on the other three persons. on the date the first respondent passed the order those two employees had been dismissed from service. it is stated that subsequently the government has - 11 - wp no.100208 of 2023 withdraw the criminal case lodged against them also. be that as it may, it is in this background that the first respondent has refused to extend the benefit of protected workmen to those dismissed employees and the management also refused to extend the said benefit. it cannot be said that their action is perverse or arbitrary. it is a lawful act on their part. it is also necessary to notice that the request for such recognition was made on 21.4.2000. if that request had been granted it would be in force from 1.5.2000 to 31.4.2001. that period is over. therefore, the learned single judge on 1.6.2006 was not justified in setting aside the order passed by the first respondent on the ground that the order of dismissal being subsequent to the date of application, that would not come in the way of they getting the benefit of status of protected workmen. he proceeds on the basis that when once such request has been made, the management has no option but to grant the said recognition, which is not the correct legal position. therefore, the order passed by the learned single judge is contrary to law declared by the apex court as well as this court and cannot be sustained.8. in wonderla holidays ltd., vs. assistant labour commissioner (w.p.no.46712/2017), in paragraph 25, it has been held as under: - 12 - wp no.100208 of 2023 25. the reasoning given by the learned commissioner is untenable for the following reasons: firstly, the law does not impose a condition that the workman can be denied the special status of a protected workman, if he/she is facing charges for serious offences. even if charges are for “minor offences, such as assault, or wrongful restraint, or wrongful confinement”, causing hurt or grievous hurt, even such offences are sufficient to disrupt industrial peace and harmony. therefore, if a workman is facing charges even for minor offences, even then, he can be denied the special status of being a protected workman. secondly, trade union leaders are meant to be the role model for the rest of the workforce. since they lead the workforce by their conduct, their conduct has to be above board. therefore, their conduct has to be pristine. moreover, by bestowing the special status of “protected workmen”, certain privileges and protection are bestowed upon the individual workman. hence, the quality of their behaviour and conduct has to be beyond doubt. those who break the law, or commit misconduct cannot expect to be given the privilege and protection of being declared “protected workmen”. hence, it is not even necessary that a conviction should be recorded against the workman before he can be denied the special status of being a “protected workman”.-. 13 - wp no.100208 of 2023 therefore, the reasoning given by the learned commissioner in unsustainable.9. further, in the judgment of wonderla (supra), this court while analyzing the ratio laid down in fouress engineering ltd., (supra), has observed ‘thus, if the workmen were to face the departmental enquiry, or a criminal trial, they can be denied the special status of protected workmen’. however, the said observation can be considered only a obiter and not a ratio.10. the basic object of law recognizing certain office bearers of trade union as protected workmen is because, to protect them against victimization by the employer, on account of they raising certain concerns of the employees which are not in the interest of the employer. however, it should not result in one losing sight of the fact that it is possible for undesirable persons to get the status of protected workmen, use the said benefit for their selfish purposes, at the cost of the industry. as observed by this court in wonderla case (supra), the trade union leaders are meant to be role models for the rest of the work force. they are required - 14 - wp no.100208 of 2023 canvass the just and reasonable demands of the workmen in accordance with law and oppose the workmen from being exploited by the employer, but not to harass or blackmail the employer and scuttle the industry.11. in both fouress engineering as well as wonderla cases (supra), the protected workmen therein were facing both criminal as well as disciplinary proceedings. in the instant case, the concerned protected workmen are facing only disciplinary proceedings.12. in respect of the workmen at sl.no.7 and 11, namely, sri.mahantesh navani and sri.rajashekhar, disciplinary proceedings have been initiated against them and they have been found guilty of the charges and their services have been terminated. however, the labour court has ordered their reinstatement and the employer has challenged the award of the labour court by way of writ petition, which are pending before this court and this court has granted an interim order staying the operation of the award of the labour court. thus, as of today, it has to be considered that - 15 - wp no.100208 of 2023 the said persons are not fit to be workmen with the petitioner. under the circumstances, they cannot be considered as a role model to the other employees and giving them the status of protected workmen may vitiate the work culture in the petitioner industry.13. in respect of the workmen at sl.no.2 and 4, namely, sri.shivayogi halbhavi and sri.veeresh patil, only disciplinary proceedings are initiated against them by the management. the allegations against them are not proved. the allegations do not constitute any criminal offence and no criminal case is filed against them.14. if pendency of any disciplinary proceedings is considered sufficient to deny the status of a protected workman, then in that event, the employer can easily victimize any person. thus, it is not appropriate to deny the status of a protected workman, if merely a disciplinary proceedings is initiated against him. however, if it is proved in the disciplinary proceedings that the person is guilty of the allegations, or if a charge sheet is filed in a criminal case, after due - 16 - wp no.100208 of 2023 investigation by the police, then in that event, it has to be held that the said workman is unfit to be accorded the status of protected workman.15. in the instant case, as there is only disciplinary proceedings initiated against sri.shivagogi halabhavi and sri.veeresh patil, and the same is pending, i am of the opinion, it would be unjust to deny them the status of protected workmen. hence the following order is passed: order i. writ petition is allowed in part. ii. the impugned order passed by the 2nd respondent dated 20.12.2022, bearing no.ukaabe/ida/sr- 02(1)/2022-23/3878 vide annexure-n to the writ petition, insofar as it relates to according the status of protected workmen to sri. mahantesh navani and sri. rajashekhar, at sl.no.7 and 11 in the impugned order, is set aside.-. 17 - wp no.100208 of 2023 iii. insofar as it relates to sri. shivayogi halabhavi and sri. veeresh patil, at sl.no.2 and 4, the order is upheld. sd/- judge gab list no.:1. sl no.:3.
Judgment:

- 1 - WP No.100208 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE17H DAY OF MARCH, 2023 R BEFORE THE HON'BLE MR JUSTICE M.I.ARUN WRIT PETITION No.100208 OF2023(L-RES) BETWEEN: TATA MARCOPOLO MOTORS LIMITED BELURU INDUSTRIAL AREA GARAG ROAD, MUMMIGATTI TQ. AND DIST. DHARWAD REPRESENTED BY ITS CEO SHRI LAXMIPRASAD S/O PRADYUMNA JAHAGIRDAR …PETITIONER (BY SRI. S. N. MURTHY, SR. ADVOCATE FOR SRI.SHIVAKUMAR S. BADAWADAGI, ADVOCATE) AND:

1. THE TATA MARCOPLO KRATIKARI KARMIKA UNION NEAR CHARANTIMATH GARDEN R R COLONY, 2ND CROSS HOSAYALLAPUR TQ. AND DIST. DHARWAD REPRESENTED BY ITS GENERAL SECRETARY2 THE DEPUTY LABOUR COMMISSIONER AND CONCILIATION OFFICER, BELAGAVI DIVISION BELAGAVI. …RESPONDENTS (BY SRI.SANJAY SINGHVI, SR. ADVOCATE FOR SRI. RAJSHEKHAR BURJI, ADVOCATE FOR R1; SRI. SHIVAPRABHU HIREMATH, AGA FOR R2) --- - 2 - WP No.100208 of 2023 THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI THEREBY QUASHING THE ORDER

DATED2012/2022 PASSED BY THE2D RESPONDENT IN BEARING NO.UKAABE/IDA/SR- 02(1)/2022-23/3878 AND THE COPY OF THE SAME IS PRODUCED AND MARKED AS ANNEXURE-N TO THE WRIT PETITION AND CONSEQUENTLY BE PLEASED TO DISMISS THE APPLICATION FILED BY THE1T RESPONDENT ON THE FILE OF2D RESPONDENT IN THE INTEREST OF JUSTICE AND EQUITY. THIS PETITION, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER

1 The petitioner is a registered Company and has one of its factory in Belur Industrial Area, Dharwad. Some of its employees are members of the 1st respondent Trade Union. The 1st respondent requested the petitioner to recognize certain office bearers of the Union as protected workmen. As the petitioner did not recognize the members proposed by the 1st respondent as protected workmen, it approached the 2nd respondent for necessary orders. The 2nd respondent after hearing the petitioner and the 1st respondent, has - 3 - WP No.100208 of 2023 passed the impugned order dated 20.12.2022 bearing No.UKAABE/IDA/SR-02(1)/2022-23/3878 vide Annexure-N to the writ petition, recognizing 11 persons as protected workmen. Aggrieved by the persons at Sl.No.2, 4, 7 and 11 in the list being given the status of protected workmen, the petitioner has preferred this writ petition. With regard to other persons, petitioner has no objection for them being recognized as protected workmen.

2. The case of the petitioner is that, disciplinary proceedings are initiated against persons at Sl.No.2 and 4 of the list, namely, Sri. Shivayogi Halabhavi and Sri. Veeresh Patil and the said proceedings are pending against them. It is further submitted that, disciplinary proceedings were initiated against persons at Sl.No.7 and 11, namely, Sri.Mahantesh Navani and Sri.Rajashekhar and they were dismissed from service. However, they have been ordered to be reinstated by the Labour Court, but, the order of the Labour Court has been challenged before this Court by way of writ petition and an interim order has been passed staying the order of reinstatement passed by the Labour Court. For the said - 4 - WP No.100208 of 2023 reasons, it is submitted that the 2nd respondent erred in according the said persons a status of protected workmen at the behest of the 1st respondent.

3. Per contra, the 1st respondent submits, proceedings initiated against the said workmen have not reached finality and they continue to be the workmen for the purposes of the Industrial Disputes Act, 1947 (hereinafter referred to as ‘the ID Act’, for brevity), and in some cases, charges have been leveled after a request was made that they should be declared as protected workmen and in some cases, they were recognized as protected workmen in the previous year even though charges were pending against them, but it has been objected in the current year and for that reason, it is prayed that the writ petition be dismissed.

4. Section 33(3 &

4) of the ID Act reads as under: “33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings.- (1) xxxxxxxxxx (2) xxxxxxxxxx - 5 - WP No.100208 of 2023 (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.” - 6 - WP No.100208 of 2023 5. Rule 61 of the Industrial Disputes (Central) Rules, 1957 reads as under:

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 - 7 - WP No.100208 of 2023 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. There is no provision under the ID Act or the Rules made therein, which imposes a condition that, the workmen can be denied the special status of a protected workmen, if he/she is facing any disciplinary proceedings or charges under criminal law. However, there have been judgments wherein such restrictions are imposed. The present case needs to be considered in the light of the said judgments.-. 8 - WP No.100208 of 2023 7. In M/s. Fouress Engineering (India) Ltd., Vs. Fouress Engineering Karmika Sangha and another, reported in ILR2013KAR1531 paragraphs 14 and 15 reads as under:

14. In the light of what is stated above, when the recognition of a workman as a `Protected Workman' is not automatic, a certain amount of discretion is conferred on the employer to recognize or not to recognize a workman as a `Protected Workman'. Such a discretion cannot be exercised by him according to his whims & fancies. If he chooses to recognize a particular workman as `Protected Workman' probably the employer need not give any reasons, but if he wants to deny such a right to a workman or to the Union which has made the request, there should be a sufficient cause for refusing recognition. If a workman is dismissed from service on the ground of gross misconduct, it is in the interest of the Industry and the workmen, such persons are not given the benefit or a privilege to indulge in such misconduct. Otherwise, law abiding workmen would get frustrated. Similarly, if a person is charged with a criminal offence and facing criminal trial, if such person is given the status of `Protected Workman' it only encourages people to indulge in such illegal activities. The whole object of conferring such a status of `Protected Workman' is to see that they espouse the cause of workmen while dealing with the Management without any fear - 9 - WP No.100208 of 2023 of reprisal. If persons who are already indulged in such act or given the status it would send wrong signals. In those circumstances, if a Management in order to maintain Industrial peace refuses to recognize them as `Protected Workmen' they cannot be found fault with. When a Trade Union makes such a request, they should see that the persons to whom such protection is sought are law abiding workmen, who can fight for the cause of the workmen and who do not indulge in illegal activities. Therefore, a positive act specifically recognizing an employee as a protected workmen is required to be taken by the employer. There is an element of discretion vested with the employer in order to protect the interests of the industry and maintain industrial peace which is in the interest of the workforce. Therefore, the rejection of the request for granting the status of a protected workmen either on the ground that there are criminal cases pending against them or on the ground that they are dismissed from service is a good ground and such an action cannot be found fault with.

15. In the instant case, the Union came into existence in the year 1988. On 15.6.1989 there was a strike in the second respondent-establishment. The workers were incited to strike, stop work and go slow. There was also riotous or disorderly behaviour within the factory premises. There was intimidation, assault of workmen or staff or superior who wanted - 10 - WP No.100208 of 2023 to attend the work. It is in those circumstances criminal complaints were lodged against all the five persons on whose behalf the Union made a request for the status of protected workmen. Similarly, departmental enquiry was initiated against all of them. It is after the initiation of the departmental enquiry and criminal proceedings, an application was filed on 8.5.2000 requesting for recognizing these five persons as protected workmen. If the protection sought for had been given by the Management then even if they were found guilty in the departmental enquiry, the Management could not have proceeded against them without seeking the permission of the Court, that is the object behind such request. The proceedings were concluded. Two of the aforesaid five persons were dismissed from service on 27.1.2001 on the proved misconduct. Because of the pendency of the departmental enquiry as well as criminal cases, the Management not at all considered their request in respect of all the five persons. It is in those circumstances, the Union approached the first respondent. The first respondent refused to extend the status of protected workmen in respect of the aforesaid two dismissed employees by its order dated 27.1.2001 though the said benefit was conferred on the other three persons. On the date the first respondent passed the order those two employees had been dismissed from service. It is stated that subsequently the Government has - 11 - WP No.100208 of 2023 withdraw the criminal case lodged against them also. Be that as it may, it is in this background that the first respondent has refused to extend the benefit of protected workmen to those dismissed employees and the Management also refused to extend the said benefit. It cannot be said that their action is perverse or arbitrary. It is a lawful act on their part. It is also necessary to notice that the request for such recognition was made on 21.4.2000. If that request had been granted it would be in force from 1.5.2000 to 31.4.2001. That period is over. Therefore, the learned Single Judge on 1.6.2006 was not justified in setting aside the order passed by the first respondent on the ground that the order of dismissal being subsequent to the date of application, that would not come in the way of they getting the benefit of status of protected workmen. He proceeds on the basis that when once such request has been made, the Management has no option but to grant the said recognition, which is not the correct legal position. Therefore, the order passed by the learned Single Judge is contrary to law declared by the Apex Court as well as this Court and cannot be sustained.

8. In Wonderla Holidays Ltd., Vs. Assistant Labour Commissioner (W.P.No.46712/2017), in paragraph 25, it has been held as under: - 12 - WP No.100208 of 2023 25. The reasoning given by the learned Commissioner is untenable for the following reasons: Firstly, the law does not impose a condition that the workman can be denied the special status of a protected workman, if he/she is facing charges for serious offences. Even if charges are for “minor offences, such as assault, or wrongful restraint, or wrongful confinement”, causing hurt or grievous hurt, even such offences are sufficient to disrupt industrial peace and harmony. Therefore, if a workman is facing charges even for minor offences, even then, he can be denied the special status of being a protected workman. Secondly, Trade Union leaders are meant to be the role model for the rest of the workforce. Since they lead the workforce by their conduct, their conduct has to be above board. Therefore, their conduct has to be pristine. Moreover, by bestowing the special status of “protected workmen”, certain privileges and protection are bestowed upon the individual workman. Hence, the quality of their behaviour and conduct has to be beyond doubt. Those who break the law, or commit misconduct cannot expect to be given the privilege and protection of being declared “protected workmen”. Hence, it is not even necessary that a conviction should be recorded against the workman before he can be denied the special status of being a “protected workman”.-. 13 - WP No.100208 of 2023 Therefore, the reasoning given by the learned Commissioner in unsustainable.

9. Further, in the judgment of Wonderla (supra), this Court while analyzing the ratio laid down in Fouress Engineering Ltd., (supra), has observed ‘Thus, if the workmen were to face the departmental enquiry, or a criminal trial, they can be denied the special status of protected workmen’. However, the said observation can be considered only a obiter and not a ratio.

10. The basic object of law recognizing certain office bearers of Trade Union as protected workmen is because, to protect them against victimization by the employer, on account of they raising certain concerns of the employees which are not in the interest of the employer. However, it should not result in one losing sight of the fact that it is possible for undesirable persons to get the status of protected workmen, use the said benefit for their selfish purposes, at the cost of the Industry. As observed by this Court in Wonderla case (supra), the Trade Union leaders are meant to be role models for the rest of the work force. They are required - 14 - WP No.100208 of 2023 canvass the just and reasonable demands of the workmen in accordance with law and oppose the workmen from being exploited by the employer, but not to harass or blackmail the employer and scuttle the Industry.

11. In both Fouress Engineering as well as Wonderla cases (supra), the protected workmen therein were facing both criminal as well as disciplinary proceedings. In the instant case, the concerned protected workmen are facing only disciplinary proceedings.

12. In respect of the workmen at Sl.No.7 and 11, namely, Sri.Mahantesh Navani and Sri.Rajashekhar, disciplinary proceedings have been initiated against them and they have been found guilty of the charges and their services have been terminated. However, the Labour Court has ordered their reinstatement and the employer has challenged the award of the Labour Court by way of writ petition, which are pending before this Court and this Court has granted an interim order staying the operation of the award of the Labour Court. Thus, as of today, it has to be considered that - 15 - WP No.100208 of 2023 the said persons are not fit to be workmen with the petitioner. Under the circumstances, they cannot be considered as a role model to the other employees and giving them the status of protected workmen may vitiate the work culture in the petitioner Industry.

13. In respect of the workmen at Sl.No.2 and 4, namely, Sri.Shivayogi Halbhavi and Sri.Veeresh Patil, only disciplinary proceedings are initiated against them by the Management. The allegations against them are not proved. The allegations do not constitute any criminal offence and no criminal case is filed against them.

14. If pendency of any disciplinary proceedings is considered sufficient to deny the status of a protected workman, then in that event, the employer can easily victimize any person. Thus, it is not appropriate to deny the status of a protected workman, if merely a disciplinary proceedings is initiated against him. However, if it is proved in the disciplinary proceedings that the person is guilty of the allegations, or if a charge sheet is filed in a criminal case, after due - 16 - WP No.100208 of 2023 investigation by the police, then in that event, it has to be held that the said workman is unfit to be accorded the status of protected workman.

15. In the instant case, as there is only disciplinary proceedings initiated against Sri.Shivagogi Halabhavi and Sri.Veeresh Patil, and the same is pending, I am of the opinion, it would be unjust to deny them the status of protected workmen. Hence the following order is passed: ORDER

i. Writ petition is allowed in part. ii. The impugned order passed by the 2nd respondent dated 20.12.2022, bearing No.UKAABE/IDA/SR- 02(1)/2022-23/3878 vide Annexure-N to the writ petition, insofar as it relates to according the status of protected workmen to Sri. Mahantesh Navani and Sri. Rajashekhar, at Sl.No.7 and 11 in the impugned order, is set aside.-. 17 - WP No.100208 of 2023 iii. Insofar as it relates to Sri. Shivayogi Halabhavi and Sri. Veeresh Patil, at Sl.No.2 and 4, the order is upheld. Sd/- JUDGE gab List No.:

1. Sl No.:

3.