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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.16553 OF 2024

Tata Communications Limited

through its Authorized Representative

having its registered o�ce at VSB

Mahatma Gandhi Road, Fort,

Mumbai – 400 001, and also having

o�ce at - Tata Communications Limited,

Pune-Alandi Road, Dighi,

Pune – 411 015 ....Petitioner

V/S

1 Union of India

through the O�ce of the

Deputy Chief Labour Commissioner,

Ministry of Labour & Employment

4

th

Floor, Jeevan deep Building,

Parliament Street,

New Delhi – 110 001.

2 Regional Labour Commissioner

(Central) Pune

1, Kaul Building, Gurunanak Nagar

Sankarseth Road, Pune – 411 002.

3 Tata Communication Employees Union

through its General Secretary

Tata Communications Limited

Pune-Alandi Road, Dighi,

Pune 411 015. ....Respondents

_________

Mr. Kiran S. Bapat, Senior Advocate with Mr. Jeevan B. Panda, Ms.

Jyoti Sinha, Ms. Dhriti Mehta and Ms. Yashasvi Kanodia i/b M/s.

Khaitan & Co. for the Petitioner.

Ms. Shehnaz V. Bharucha for Respondent Nos.1 and 2.

Mr. Jaiprakash Sawant for Respondent No.3.

__________

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CORAM: SANDEEP V. MARNE, J.

DATE : 12 NOVEMBER 2024.

J U D G M E N T:

A. T HE CHALLENGE

1)Petitioner has �led this Petition challenging order dated 14

August 2024 passed by the Regional Labour Commissioner (Central),

Pune, declaring �ve o�ce bearers of Respondent No.3-Union as

'protected workmen' for a period of one year under Section 33(4) of the

Industrial Disputes Act, 1947 (ID Act) read with Rule 61(4) of the

Industrial Disputes (Central) Rules, 1957 (ID (Central) Rules).

B. F ACTS

2)On 1 January 1947 Indian Radio and Telecommunication

Company Limited was taken over by the Government of India alongwith

its employees. The Government of India created a Department in the

Ministry of Telecommunications named as Overseas Communication

Service (OCS) dealing with communication with Indian subjects with

rest of the world. In March 1986, the operations, management, control,

assets and liabilities of the OCS were transferred by the Department of

Telecommunications, Government of India to a newly incorporated entity

by the name Videsh Sanchar Nigam Limited ( VSNL). Thus, all the

employees of OCS were deemed to have been transferred to VSNL and

they were treated as on deputation on foreign service to VSNL without

any deputation allowance. On 11 December 1989, VSNL issued notice for

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absorption of OCS employees in VSNL with e�ect from 1 January 1990.

In the year 2002, the Government of India sold 25% of its shareholding

in VSNL to Panatone Finvest Limited (Panatone), a special purpose

investment earning of the Tata Group. Panatone subsequently acquired

additional 20% shareholding of VSNL from public shareholders. On 28

January 2008, VSNL's name was changed to Tata Communica tions

Limited (Petitioner). In March 2021, the Government of India divested

its entire equity shareholding of 26.12%, out of which 10% shareholding

was purchased by Panatone thereby raising the total shareholding of

Tata Group of Companies to 58.87%.

3)It appears that two Memoranda of Settlement dated 2 December

2000 and 24 July 2001 were concluded between erstwhile Management of

VSNL and Federation of Videsh Sanchar Nigam Employees Union. After

VSNL seized to be a public sector undertaking, the said settlements

dated 2 December 2000 and 24 July 2001 were continued to be

implemented by the Petitioner since the same were valid till 31

December 2006. Further Memorandum of Settlement dated 31 January

2008 was entered into between the Management of VSNL and

Federation of VSNL Employees Union. In June 2008, Federation of Tata

Communications Employees Union (Federation) came to be constituted

and registered under the provisions of the Trade Unions Act, 1926.

According to the Petitioner, the Federation raised various demands on

behalf of the workmen of the Petitioner across all o�ces in India and

various Memoranda of Settlements were executed from time to time

between the Petitioner and the Federation.

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4)It appears that the employees and workmen of the Petitioner

posted at regional levels at Delhi, Mumbai, Chennai etc. formed their

separate unions which were a�liated to the Federation. Accordingly, it

appears that Tata Communication Employees Union (Respondent No.

3-Union) came to be formed and registered as a registered Trade Union

in respect of Petitioner-Establishment at Pune. However, according to the

Petitioner, even after registration of Respondent No.3-Union, all

negotiations and settlements were always executed with the Federation

to which Respondent No.3-Union continues to remain a�liated.

According to the Petitioner, it has recognized only the Federation and not

any regional unions (including Respondent No.3) for the purpose of

negotiations.

5)In the above background, the Federation sent email dated 26 July

2019 to the Petitioner communicating names of four o�ce bearers of the

Federation for being recognized as 'protected workmen' under provisions

of Section 33 of the ID Act. Out of the said four names, Petitioner

granted recognition to Mr. Arun B. Gamre and Mr. A.T. Gadhave by

email/letter dated 7 August 2019. Since two other employees were facing

disciplinary action, they were not granted recognition as protected

workmen.

6)On 27 February 2020, Respondent No.3-Union sent names of �ve

o�ce bearers for being recognized as protected workmen for �nancial

year 2020-21. It appears that the regional Union at Delhi, Chennai,

Kolkata and Mumbai also issued similar requests for recognizing its

regional union o�ce bearers for being recognized as protected workmen.

Petitioner rejected the request of Respondent No.3-Union by email dated

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13 March 2020 stating that the Management had already g iven

recognition to two workmen suggested by the Federation and th e

Federation was requested to share few more names on its behalf for

recognition of total �ve non-executives as protected workmen. It appears

that the Federation protested against Petitioner's response not granting

recognition to o�ce bearers of regional Unions stating that only major

issue at all India level would be handled by the Federations and

accordingly suggested names of �ve o�ce bearers of the Federation for

being recognized as protected workmen. It appears that by email dated 5

June 2020, Petitioner recognized �ve suggested names by the Federation

as ‘protected workmen’.

7)In the above background, Respondent No.3-Union �led Petition

before Deputy Chief Labour Commissioner, Pune seeking declaration of

names of �ve workmen as ‘protected workmen’. Petitioner �led Reply

dated 15 January 2023 opposing the Petition. The Assistant Labour

Commissioner however closed the Petition by his notings dated 5 October

2023 granting liberty to the Union to adopt appropriate legal

proceedings. Respondent No.3-Union thereafter �led fresh Petition dated

11 December 2023 for declaration of named �ve employees therein as

‘protected workmen’. The Petition was opposed by the Petitioner by �ling

Reply dated 5 March 2024. The Regional Labour Commissioner (Central)

Pune has allowed the Petition �led by Respondent No.3-Union by order

dated 14 August 2024 and has declared the �ve named o�ce bearers of

Respondent No.3-Union as ‘protected workmen’ for a period of one year

from the date of the order in ROW/Maharashtra Region consisting of

Pune, Nashik, Nagpur, Gujarat, Solapur of establishment of the

Petitioner under provisions of Section 33(4) of the ID Act read with Rule

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61(4) of the ID (Central) Rules. Petitioner is aggrieved by the order dated

14 August 2024 and has �led the present Petition.

C. S UBMISSIONS

8)Mr. Bapat, the learned senior advocate appearing for Petitioner

would submit that the Regional Labour Commissioner has palpab ly

erred in entertaining and deciding application dated 25 April 2024 made

by Respondent No.3-Union when in fact the reference made to him was

in respect of the application dated 13 December 2023. He would therefore

submit that the impugned order su�ers from jurisdictional error of

deciding something, which was never a subject matter of reference under

provisions of Rule 61(4) of the ID (Central) Rules. Mr. Bapat would

further submit that Section 33 of the ID Act read with Rule 61 of the ID

(Central) Rules contemplate recognition of o�ce bearers of only

recognized unions as protected workmen. That Respondent No.3-Union,

being a regional/local level union, has not been recognized by the

Petitioner for any purposes. That the Federation is the only recognized

Union, which is also a registered trade union for the purpose of holding

negotiations and entering into settlement with the Petitioner. That

therefore only o�ce bearers of the Federation are entitled to be

recognized as protected workmen under Section 33 of the ID Act read

with Rule 61 of the ID (Central) Rules. That Petitioner has never

negotiated with Respondent No.3-Union nor has entered into even a

single settlement with it. He would submit that the whole objective

behind granting special protection to o�ce bearers of the registered

trade union is to ensure that they do not face victimization at the hands

of the employer only on account of negotiating the demands of workmen.

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That since no o�ce bearer of Respondent No.3-Union holds any

negotiations with Petitioner, there is no question of their victimization.

9)Mr. Bapat would further submit that the Regional Labour

Commissioner was grossly erred in accepting the application of

Respondent No.3-Union dated 25 April 2024 on solitary ground of failure

on the part of Petitioner to respond thereto within a period of 15 days.

That there is nothing in law like deemed recognition on expiry of period

of 15 days. In support of his contention, he relies on judgments of

Karnataka High Court in Canara Workshops, Ltd. Mangalore vs.

Additional Industrial Tribunal, Bangalore, and another

1

, Bharat

Fritz Werner Ltd. rep. by its President & CEO vs. Assistant Labour

Commissioner   and   another

2

and of the Supreme Court in P.H.

Kalyani vs. Air France, Calcutta

3

. He also relies on judgment of this

Court in AIR India Ltd. vs. Indian Pilots Guild and another

4

in

support of his contention that the Union, through which workmen claim

protected workmen status, must be recognized. Mr. Bapat relies on

judgment of Delhi High Court in Rodhee  vs.   Govt.   of   Delhi   and

others

5

 in support of his contention that in each branch of

establishment, minimum of �ve and maximum of 100 employees can be

granted protected workmen status. Mr. Bapat also relies on judgment of

this Court in Pune District Central Co-operative Bank, Ltd. vs.

Bank Karmachari Sangh and another

6

 in support of his contention

that status of ‘protected workmen’ cannot be conferred in respect of each

1 1985 SCC OnLine Kar 133

2 2011 SCC OnLine Kar 4502

3 1963 SCC OnLine SC 105

4 (2005) Mah LJ 850

5 2002 SCC OnLine Del 1631

6 2002(1) LLN 820

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unit/branch of employer’s business. Mr. Bapat would pray for setting

aside the impugned order passed by the Regional Labour Commissioner.

10)The Petition is opposed by Mr. Sawant, the learned counsel

appearing for Respondent No.3-Union. He would submit that there is no

requirement under the provisions of ID Act or ID (Central) Rules that

the Union, whose o�ce bearers are sought to be registered as ‘protected

workmen’, must be recognized by the employer. That provisions of

Section 33 of the ID Act require mere status as registered trade union.

That since Respondent No.3-Union is a registered trade union, it is

entitled to seek conferment of status of ‘protected workmen’ to minimum

of its �ve o�ce bearers working at Pune establishment. He would contest

the claim of Mr. Bapat about non-holding of negotiations or non-

execution of settlement with Respondent No.3-Union and would submit

that several negotiations have been held and settlements have been

executed in favour of Respondent No.3-Union by the Petitioner in his

past. Mr. Sawant would submit that since the order passed by the

Regional Labour Commissioner does not su�er from any patent error, no

case is made out for interference in the impugned order. He would pray

for dismissal of the Petition.

D. R EASONS AND ANALYSIS

11)After having considered the submissions canvassed by the learned

counsel appearing for parties, following broad issues arise for

consideration:

1) Whether the Union, whose o�ce bearers seek status of

'protected workmen', is required to be recognized by the employer?

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2) Whether provisions of ID Act read with ID (Central) Rules

contemplate conferment of status of 'protected workmen' on o�ce

bearers of only Federation of di�erent Unions or such status can be

conferred on o�ce bearers of di�erent constituent unions of the

Federation registered for each establishment of the employer?

3) Whether positive action of employer of recognition is a

sine qua non for an o�ce bearer of a Trade Union to claim

status of ‘protected workmen’?

4) Whether the order passed by the Regional Labour

Commissioner adjudicating application dated 25 April 2024

is sustainable when the reference was made to him in

respect of application dated 23 December 2023?

D. 1 I SSUE NO. 1 : Whether the union, whose o�ce bearers seek

status of ‘Protected Workmen’, is required to be recognised

by the Employer?

12)Mr. Bapat has strenuously contended that unless the

Union/Federation is recognized by the establishment for the purpose of

negotiations and settlements, its o�ce bearers cannot be conferred the

status of ‘protected workmen’ under provisions of Section 33(4) of the ID

Act. He has contended that since only Federation is recognized by the

Petitioner, the o�ce bearers of Federation alone can be considered for

conferment of status of ‘protected workmen’. In short, the contention of

the Petitioner is that recognition of the Union is a sine qua non for

consideration of names of its o�ce bearers for conferment of status as

‘protected workmen’.

13)To decide the �rst issue, it would be necessary to consider the

provisions of Section 33 of the ID Act, which provide for a prohibition on

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changing the conditions of service during pendency of proceedings.

Section 33 of the ID Act provides thus:

33. Conditions of service, etc., to remain unchanged un der certain

circumstances during pendency of proceedings:—

(1) During the pendency of any conciliation proceeding before a conciliation

o�cer 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 the

prejudice of the workmen 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

order, 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:

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 th e

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.

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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 o�ce bearer of a registered

trade union connected with the establishment, is recogn ised as such

in accordance with rules made in this behalf.

(4) In every establishment, the number of workmen to be re cognised

as protected workmen for the purposes of sub-section (3) shall be one

per cent of the total number of workmen employed there in subject to

a minimum number of �ve protected workmen and a maximum

number of one hundred protected workmen and for the afor esaid

purpose, the appropriate Government may make rules provi ding for

the distribution of such protected workmen among various trade

unions, if any, connected with the establishment and th e manner in

which the workmen may be chosen and recognised as protec ted

workmen.

(5) Where an employer makes an application to a conciliation o�cer, Board, an

arbitrator, a Labour Court, Tribunal or National Tribunal under the proviso to

subsection (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 �t :

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 �t:

Provided further that no proceedings before any such authority shall lapse

merely on the ground that any period speci�ed in this sub-section had expired

without such proceedings being completed.

(emphasis added)

14)Thus, under sub-section 3 of Section 33 of the ID Act, a special

protection is made available to a ‘protected workman’ from altering his

conditions of service or discharging or punishing him without express

permission in writing of the Authority before whom the proceedings are

pending. The explanation to sub-section (3) of the Section 33 de�nes the

term 'protected workman' to mean a workmen, who is o�ce bearer of a

registered trade union connected with the establishment and who is

recognized as a protected workmen in accordance with the Rules. Sub-

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section (4) of Section 33 deals with the number of workmen who can be

recognized as protected workmen for the purposes of sub-section 3. Such

number is required to be 1% of the total number of workmen employed in

the establishment, subject to minimum of 5 and maximum of 100.

15)As observed above, explanation to sub-section 3 of Section 33

provide for recognition of o�ce bearer of a registered trade union as

‘protected’ workman in accordance with Rules made in that behalf.

Accordingly, Rule 61 of the ID (Central) Rules provide for recognition of

‘protected workmen’ under Section 33 of the ID Act. Rule 61 of the ID

(Central) Rules provide thus:

Rule 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 30

April every year, the names and addresses of such of the o�cers of the union

who are employed in that establishment and who in the opinion of the Union,

should be recognized as “protected workmen”. Any change in the incumbency

of any such o�cer shall be communicated to the employer by the union within

15 days of such change.

(2) The employer shall subject to S. 33, Sub-sec. (4) recognize such workmen to

be protected workmen for the purpose of Sub-sec. (3) of the said section and

communicate to the Union, in writing, within �fteen 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 S. 33, Sub-sec. (4), the employer shall recognize 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 �gures 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:

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Provided further that where the number of protected workmen allotted to a

union under this sub-rule falls short of the number of o�cers of the union

seeking protection, the union shall be entitled to select the o�cers to be

recognised as protected workmen. Such selection shall be made by the union

and communicated to the employer within �ve days of the receipt of the

employer’s letter.

(4) When a dispute arises between an employer and any registered trade union

in any manner connected with the recognition of “protected workmen” under

this rule, the dispute shall be referred to any Regional Labour Commissioner

(Central) or Assistant Labour Commissioner (Central) concerned, whose

decision thereon shall be �nal.

16)Thus, a registered trade union connected with Industrial

establishment can communicate to the employer before 30

th

day of every

year, the names of its o�ce bearers for being recognized as ‘protected

workmen’. Upon receipt of such intimation, the employer is required to

grant such recognition for the purposes of Section 33(4) of the ID Act by

issuing a communication to the Union in writing within a period of 15

days. Such recognition remains valid for a period of 12 months from the

date of communication. While granting such recognition, the employer

needs to have regard to the minimum or maximum number of protected

workmen as provided for in Section 33(4) of the ID Act.

17)Under Proviso to sub-rule (3) of Rule 61 of the ID (Central) Rules,

when there are more than one registered trade unions in an

establishment, the maximum number of protected workmen are required

to be distributed by the employer amongst the unions in proportion to

the membership �gures of each union. Under sub-rule (4) of Rule 61,

where a dispute arises between an employer and a registered trade union

with regard to any matter connected with recognition of protected

workmen, such dispute is required to be referred to the Regional Labour

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Commissioner (Central) or the Assistant Labour Commissioner

(Central), whose decision on such dispute becomes �nal.

18)Thus, under the provisions of Section 33 of ID Act or Rule 61 of ID

(Central) Rules, the only requirement for conferment of status of

protected workmen on o�ce bearer of a Trade Union is that such union

must be a 'registered trade union'. There is no concept under the

provisions of the Act or the Rules which requires or empowers the

employer to choose one out of the several registered trade unions as

‘recognized union’ for the purpose of conferment of status of protected

workmen on its o�ce bearers. In fact, under proviso to Rule 61(3), the

employer is required to distribute the number of workmen while

conferring status of protected workmen in the proportion of their

membership �gures. Thus, the employer is not supposed to choose one

out of the several registered trade unions and treat it as a ‘recognized

trade union’ by denying the status of ‘protected workmen’ on o�ce

bearers of other unrecognized, but registered trade unions. The law

mandates that the employer must distribute the number of workmen for

conferment of status of protected workmen amongst all registered trade

unions in proportion of their membership. Therefore, the contention of

Mr. Bapat that since Respondent No.3-Union is not ‘recognized’ by

Petitioner for the purpose of negotiations and settlements, its o�ce

bearers cannot be conferred status of protected workmen. deserves to be

repelled.

19)In fact, the judgment of this Court in AIR India Limited (supra)

relied upon by Mr. Bapat recognizes the above position in law by holding

that grant of status of protected workmen is not dependent on whether

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the management has recognized the union or not. This Court has held in

paragraph 21 of the judgment as under:

21. In the instant case, the respondent No. 1 had made a speci�c application

that two of its members should be granted the status of protected workmen.

The employer in turn by way of its reply which has been treated to be the

written statement had merely raised objections which have been noted earlier

and which may be again set out, viz., that there were claims from both Indian

Pilots Guild as well as Air India Line Pilots' Association with regard to the

representation of pilots working for AIR INDIA. That it is not the practice of

the management to grant the status of protected workmen to the o�ce-bearers

of an unrecognized union in Air India. The Indian Pilots Guild was a de-

recognized union and as such the status of protected workmen could not be

granted to o�ce-bearers of Indian Pilots Guild. In so far as this contention is

concerned for the purpose of recognition, as held earlier neither rule 61 nor S.

33 requires that it is only recognized union in an establishment which is

required to be protected. The language used in S. 33 is an application by a

registered trade union. In other words all that is required is that the

union must be registered. Admittedly in the instant case the union is

registered. The objection therefore by the petitioners herein that they

do not give recognition of protection to members of unr ecognized

union would be clearly contrary to the purport and in tent of the Act

and the rules made thereunder. The Act makes no disti nction,

between recognized and unrecognized union. The grant of status of

protected workmen is not dependent whether a management has

recognized a union or not in the absence of any spec i�c provision in

the Act and the Rules. On the contrary the recognitio n is to a

registered union. The section must be read in the spir it in which it

has been enacted. The section recognizes that in an industry there is

possibility of several unions, some of which may be recognized, some may be

unrecognized for reasons or known.

(emphasis added)

20)Mr. Bapat has sought to rely upon interim order passed by the

Single Judge of the Madras High Court in Tata Communications

Limited vs. Union of India and others (Writ Petition No.9937 of 2022)

dated 20 April 2022, in which following submissions are recorded while

granting interim order of stay:

2. The learned Senior Counsel for the petitioner submits that the petition

�led by the 3

rd

respondent was rendered exfacie not maintainable and

therefore, the 2

nd

respondent has no jurisdiction to pass the impugned order.

The learned Senior Counsel for the petitioner further submits that as per Rule

61(4) of the Central Rules, only the Registered Trade Union, connected with

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the industrial establishment, shall communicate with the employer and

whereas the 2

nd

respondent has erroneously interpreted Rule 61(4) of the

Central Rules and considered the application of the 3

rd

respondent, who

is not the bargaining entity connected with the industrial

establishment and therefore, the order of the second respondent is under

challenge in the present writ petition. Further, he has relied upon the interim

order passed by the Delhi High Court in a similar issue in W.P. (C) No.3743 of

2022 dated 08.03.2022 and therefore, he seeks for an order of interim stay.

(emphasis and underlining added)

21)Apart from the fact the order dated 20 April 2022 is an interim

order passed by Single Judge of Madras High Court, which does not bind

this Court, I do not �nd any requirement in law that the Union seeking

conferment of status of protected workmen on its o�ce bearers needs to

be a 'bargaining entity' connected with the Industrial establishment.

Therefore, the interim order dated 20 April 2022 passed by Madras High

Court does not assist the case of the Petitioner.

22) Mr. Bapat has relied upon judgment of Delhi High Court in

Rodhee (supra) in support of his contention that the Union, through

which workmen claim status of protected workmen, must be recognized

by the establishment. However the said judgment nowhere provides that

unless the Union is recognized by the employer, its o�ce bearer cannot

be conferred the status of protected employee. As observed above, this

Court in AIR India Limited (supra) has already held that the act does

not make any distinction between recognition and unrecognition and that

grant of status of protected workmen does not depend on recognition of

Union by the Management.

23)Therefore, the �rst issue about requirement of recognition of

Union by the establishment for the purpose of conferment of status of

‘protected workmen’ on its o�ce bearers is answered against the

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Petitioner. I accordingly proceed to hold that since Respondent No.3-

Union is a registered trade union, it need not receive recognition from

Petitioner for the purpose of conferment of status of ‘protected workmen’

on its o�ce bearers.

D. 2 I SSUE NO. 2 : Whether provisions of ID Act read with ID

(Central) Rules contemplate conferment of status of

'protected workmen' on o�ce bearers of only Federation of

di�erent Unions or such status can be conferred on o�ce

bearers of di�erent constituent unions of the Federation

registered for each establishment of the employer?

24)Petitioner has contended that since Federation of di�erent

regional Unions has been formed, which is the real bargaining entity in

respect of workmen of the Petitioner, the o�ce bearers of Federation

alone can be conferred status of ‘protected workmen’ under Section 33 of

the ID Act. In other words, it is sought to be contended that o�ce bearers

of regional/local Trade Unions cannot be conferred status of protected

workmen. However as observed above, there is no prohibition either

under provisions of Section 33 of the ID Act or Rule 61 of the ID

(Central) Rules for conferment of status of protected workmen on o�ce

bearers of multiple Unions in an establishment. Thus, within one

establishment, it is permissible to confer status of protected workmen on

multiple Trade Unions. Petitioner is an employer who has multiple

establishments at Pune, Mumbai, Kolkata, Chennai etc. Thus, even in

Petitioner's establishment at Pune if there were multiple registered

Trade Unions, it is permissible to confer status of protected workmen on

o�ce bearers of such multiple Trade Unions. Therefore, I do not see any

reason why a registered Trade Union in respect of Petitioner's

establishment at Pune cannot have its o�ce bearers being recognized as

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protected workmen merely because the regional Unions have formed the

Federation, who also is entitled to nominate its o�ce bearers as

protected workmen. The Federation is formed only for the purpose of

negotiating conditions of services at all India level. This does not mean

that the constituent registered Trade Unions of such Federation would

lose their status within the meaning of ID Act, especially for the purpose

of conferment of status of its o�ce bearers as protected workmen.

25)Mr. Bapat has relied upon judgment of this Court in Pune

District Central Co-operative Bank Ltd. (supra) in support of his

contention that it is impermissible to grant recognition to o�ce bearers

of local branches of Union. In Pune District Central Co-operative

Bank Ltd. (supra) the issue before this Court was whether protected

employees must be taken as a proportion of all employees in the Industry

in respect of which Union is a representative or as a proportion of

employees in each branch. This Court held that when there is a

designated Union in existence, the total number of protected employees

must be as a whole subject to maximum and minimum provided under

sub-section 2 (b) of section 101 of the Bombay Industrial Relations Act.

This Court rejected the contention of the Union that it was entitled to

designate minimum of 5 and maximum of 100 employees as protected

employees in every branch of the Bank. This Court held in paragraph 19

as under:

19. Having regard, therefore, to the circumstances, I am of the view

that in cases such as the present, when there is a representative union

in existence in any speci�c local areas, the total number of protected

employees must be construed as one per cent of the total number of

employees engaged in the industry as a whole subject to the minimum

and the maximum provided by Sub-sec. (2B) of S. 101. In other words, it

would be impermissible to allow the computation to be made with

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reference to each branch of each co-operative bank. The contention of

the learned counsel for the Union that the Union is entitled to designate

a minimum of �ve and a maximum of one hundred employees as

protected employees in every branch of a co-operative bank is therefore,

rejected.

26)Thus, the issue before this Court in Pune District Central Co-

operative   Bank Ltd. (supra) was altogether di�erent. The Union

therein contended that it was entitled to designate minimum of 5 and

maximum of 100 employees in each branch for conferment of status of

protected workmen. This Court held that the Union therein represented

employees of the entire Bank and that therefore the number of protected

employees must be construed as 1% of total number of employee s

engaged in the Bank as whole. The judgment in Pune District Central

Co-operative Bank Ltd. (supra) therefore cannot be read in support of

a proposition that when an employer maintains di�erent establishments,

the minimum and maximum number of employees to be nominated as

protected employees must be with reference to all employees of the

Petitioner across India.

27)In my view, it therefore cannot be contended that Respondent

No.3-Union, which is a registered Trade Union in relation to

establishment of Petitioner at Pune is prohibited from nominating its

o�ce bearers for conferment of status of protected employees. Mere

existence of Federation does not nullify the right of individual registered

Trade Union in respect of a particular establishment from having its

o�ce bearers treated as protected employees. The second issue is

answered accordingly.

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D. 3 I SSUE NO. 3 : Whether positive action of recognition by

employer is a sine qua non  for an o�ce bearer of a Trade

Union to claim status of Protected Workmen?

28)Mr. Bapat has contended that mere nomination of names of �ve

o�ce bearers by Respondent No.3-Union coupled with failure on the part

of Petitioner to respond to the application did not confer automatic

recognition to the said �ve o�ce bearers the status of the protected

workmen. In support of his contention, he has relied upon judgment of

Karnataka High Court in Canara Workshops Ltd. Mangalore (supra)

which in turn has relied upon judgment of the Apex Court in P.H.

Kalyani (supra) and has held in paragraphs 8, 9 and 12 (iii) and (iv) as

under:

8. Learned Counsel for the petitioner contended that a positive action of

recognition on the part of the management was a must and without that no

workman can claim the status of a protected workman. In support of this

submission, Learned Counsel relied on the judgment of the Supreme Court

in P.H. Kalyani v. AIR France [AIR 1963 SC 1756.] . The relevant portion of

the judgment reads-

“(5) Learned Counsel for the appellant has further raised same points

which were raised on behalf of the appellant before the Labour Court.

In the �rst place, he contends that the appellant was a protected

workman and the Labour Court was not right when it held that the

appellant was not a protected workman. We are of opinion that the

question whether a particular workman is a protected workman or not

is a question of fact, and the �nding 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 appell ant 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. The Labour Court has held

that according to the Rules framed by the Government of West Bengal

as to the recognition of protected workmen there must be some positive

action on the part of the employer in regard to the recognition of an

employee as a protected workmen before he could claim to be a

protected workmen for the purpose of Section 33. Nothing has been

shown to us against this view. In the absence therefore of any evidence

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as to recognition, the Labour Court rightly held that the appellant was

not a protected workman and therefore previous permission under

Section 33(3) of the Act would not be necessary before his dismissal.”

[Emphasis supplied.]

The above decision was rendered by the Supreme Court interpr eting a

corresponding rule of the rules framed by the State of West Bengal under the

provisions of the Act. It was Rule 61 of the West Bengal Rules. A comparison of

the West Bengal Rules and Rule 62 of the Rules shows that both the rules are

similarly worded except to the extent of an additional requirement imposed

under the West Bengal Rules. The only di�erence between the two, is while

Rule 62(2) of the Rules requires the employer to send a comm unication

regarding the recognition of the workmen as protected workmen to the trade

union concerned, the West Bengal Rules requires the employer to send the

communication also to the Labour Commissioner and the Conciliation O�cer

concerned. In other respects, there is no di�erence at all.

9. The clear pronouncement of the Supreme Court in the  Kalyani's

case extracted above, is that a positive action of recognition by the

employer is necessary in order that an o�ce bearer of a trade union

secures the status of a protected workman.

12. (i) ….

(ii) ….

(iii) If the intention of the rule making authority was that if within �fteen days

after the receipt of the letter from the trade union seeking recognition as

protected workmen to its o�ce bearers the management fails to send a reply,

the workmen whose names are mentioned in the communication shal l be

deemed to be protected workmen, the rule would have been appropriately

worded. In the absence of any such provision, it is impermissible to hold that

just because a communication had been sent under Rule 62(1) and there had

been no reply from the employer within �fteen days, the persons whose names

are found in the communication sent under Rule 62(1) becomes protected

workmen.

(iv) Therefore in cases where no reply is received from t he

management accepting the list of protected workmen within �fteen

days, unless the trade union chooses to approach the man agement

and secure recognition, the only course open to the trade union is to

secure recognition through an order of the Conciliat ion O�cer.

Learned Counsel for the 2nd Respondent submitted that if such a view is

taken, the workmen would be deprived of the status of protection till the date

of the order of the Conciliation O�cer. This submission is also not tenable. The

recognition whether through a written communication from the employer sent

under Rule 62(2) or through an order of the Conciliation O�cer would be,

irrespective of the date of communication or the date of the order, e�ective for

the whole year, as the rule provides for recognition of protected workmen for

an year i.e. an year commencing from 1st May of an year ending 30th April of

the next year, and not from the date of communication by the management or

the order. It is only in cases where the trade union sends a belated

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communication, i.e., after 30th April, the recognition Would be e�ective from

the date of communication and holds good for the balance of the period of the

year concerned.

29)Mr. Bapat has also relied upon judgment of Karnataka High Court

in Bharat Fritz Werner Ltd. (supra) in which the Division Bench has

again relied upon judgment of the Apex Court in P.H. Kalyani (supra)

and has held in paragraph 13 as under:

13. So, even as could be seen from the principles laid down by the Apex Court,

a positive action on the part of the employer is necessary recognising an

employee as a ‘Protected Workmen’. Here, in the case on hand, it is relevant to

note that there is no positive action on the part of the employer which led to

the dispute and it is the �rst respondent who took a decision refusing the

recognition of the aforesaid two workmen as ‘Protected Workmen”. So as stated

above, when a person is facing criminal charges, the law would not come to the

help of such persons to protect them so as to defeat the very purpose of the

legislation.

30)Even in AIR India Limited (supra) this Court has rejected the

contention of deemed grant of status of protected workmen on failure of

the management to communicate decision to the Union within 15 days.

This Court held in paragraph 20 as under:

20. To answer the question whether on failure there is a deemed recognition it

must be borne in mind that deemed recognition can only be there if there is a

speci�c provision in the Act or if otherwise on a reading of the provisions it can

be implied that there is deemed recognition. Section 33(4) does not so provide.

Under the Rules what is set out is that the union must intimate to the

employer, which of the workmen are to be conferred the status of protected

workmen, and the employer then, within 15 days of the receipt of the letter,

should communicate to the union the list of workmen recognized, to be

protected workmen. A reading of the Rule, in my opinion, does not lead to the

inference that there is a deeming provision by which workmen can be treated

as duly protected merely on the failure by the employer to communicate its

decision to the union. Secondly if the Act itself has not so provided then a

subordinate legislation cannot so provide. Apart from that power has been

conferred on an authority to decide the dispute. The dispute is not only a

positive act on the part of the management to grant recognition but will also

include a failure to communicate their decision or no decision itself. In the

instant case the subordinate legislation does not so provide but the Rule has

been so construed by the Gujarat and Delhi High Courts. The view that there

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is no deemed protection is forti�ed by the view taken by the Apex Court

in Kalyani case (vide supra). What was under consideration in that case was

whether the Rules framed by the Government of West Bengal a s to the

recognition of protected workmen which Rules are similar in all respect, except

to the extent of intimating the decision to the Government. Considering the

Rules the Apex Court upheld the view of the Labour Court that there is no

deeming �ction though in that case the company had replied to the letter

pointing out certain legal defects therein. One of the requirement of deeming

�ction is that the application must be complete in all respects. As noted earlier

there must be a speci�c provision in law. There is nothing mentioned in S.

33(4). The Rules do not expressly or impliedly provide so and in my opinion

therefore the second respondent has clearly committed an error of law which is

apparent on the face of the record in holding that on failure by the employer to

communicate within 15 days the workmen would be entitled to protection. A

learned Judge of the Karnataka High Court in  Canara   Workshops (vide

supra), after considering the judgment in P.H. Kalyani (vide supra), has taken

a view that there must be positive action on the part of the management. The

word dispute in rule 61(4) must be read to include a case also of failure to

communicate a decision or non-decision itself. The expression dispute cannot

be limited only to those cases where the management has rejected the

application on some ground or on no ground but also where there is failure to

communicate the decision.

31)Thus, the law appears to be fairly well settled that in the event of

failure on the part of the management to communicate decision on

application within 15 days, there is no deemed recognition as protected

employees. However, in paragraph 20 of the judgment in AIR India Ltd.

(supra), this Court has held that the word 'dispute' in Rule 61 (4) of the

ID (Central) Rules must be read to include a case of failure to

communicate the decision or non-decision itself. This Court further held

that the expression 'dispute' cannot be limited to only those cases where

the management has rejected the application and that the same would

include a case where there is failure to communicate the decision.

32)The conspectus of the above discussion is that while there is no

concept of deemed conferment of status of protected workmen upon

failure on the part of management to communicate decision within a

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period of 15 days of receipt of application, failure on the part of the

management to give such response enables the Union to make a

reference to the Regional Labour Commissioner under Rule 61 (4) of the

ID (Central) Rules. In the present case, the Petitioner admittedly did not

respond to application of Respondent No.3-Union dated 25 April 2024

within a period of 15 days and therefore Respondent No.3-Union was

entitled to make a reference to Regional Labour Commissioner under

provisions of Rule 61(4) of the ID (Central) Rules. The third issue is

answered accordingly.

D. 4 I SSUE NO. 4 : Whether the order passed by the Regional

Labour Commissioner adjudicating application dated 25

April 2024 is sustainable when the Reference was made to

him in respect of application dated 23 December 2023?

33)Mr. Bapat has strenuously contended that the impugned order

dated 14 August 2024 is liable to be set aside on account of adjudication

of application dated 25 April 2024, which was not a subject matter of

reference to the Regional Labour Commissioner under provisions of Rule

61(4) of the ID (Central) Rules. It appears that after narrating the facts

of the case, the Regional Labour Commissioner formulated the Issue

No.1 as under:

“1. Whether the application made Tata Communication Emplo yees

Union, Pune dated 13.12.2023 in terms of Section 33(4) of the I. D. Act,

1947 to declare 5 o�ce bearers of the Union as “Protected Workmen” is

legal and justi�ed? If yes, what relief?”

34)Thus, the issue taken up for consideration by the Regional Labour

Commissioner was whether application dated 13 December 2023 made

by Respondent No.3-Union for declaration of its �ve o�ce bearers as

‘protected workmen’ was legal and justi�ed.

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35)As observed above, Respondent No.3-Union had initially made

application dated 27 February 2020 to the Petitioner suggesting names

of its �ve o�ce bearers of Pune Union for being recognized as protected

workmen. Since the said request was rejected by letter dated 13 March

2020, Respondent No.3-Union �led Petition before the Regional Labour

Commissioner on 20 August 2020. It appears that the Assistant Labour

Commissioner, Pune, conducted conciliation with the Petitioner and took

note of the position that Petitioner operates �ve establishments across

India and there is a Federation to represent employees of all the �ve

establishments. The Respondent No.3-Union on the contrary contended

that it is a registered Trade Union and that all the �ve Regional

Employees Unions had �led applications for conferment of status of

protected employees. It was noted that the Regional Labour

Commissioner, Chennai had ruled in favour of the Regional Registered

Trade Union, whose order was subject matter of challenge before Madras

High Court. The Assistant Labour Commissioner noted that t he

Regional Labour Commissioner, Mumbai had put on hold the

proceedings before him and therefore proceeded to close the conciliation

proceedings. This is how the application made by Respondent No.3-Union

in 2020 did not yield any positive outcome. Three years later, Respondent

No.3-Union �led a fresh Petition before the Regional Labour

Commissioner suggesting the names of �ve o�ce bearers for conferment

of status of ‘protected workmen’ complaining that the Respondent-

Management was granting status of protected workmen only to the o�ce

bearers of the Federation. The Petition �led by the Respondent No.3-

Union on 11 December 2023 was opposed by the Petitioner by �ling

Reply dated 5 September 2024. The Regional Labour Commissioner

however took note of the fact that the period of recognition as protected

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workmen was only for one year and every year the Union needs to submit

list of its o�ce bearers. He accordingly took cognizance of application

dated 25 April 2024 �led by Respondent No.3-Union and proceeded to

adjudicate the same.

36)Since the Regional Labour Commissioner proceeded to adjudicate

subsequently �led application dated 25 April 2024, Petitioner is seeking

to challenge the jurisdiction as well as proprietary of the Regional

Labour Commissioner in passing the impugned order. While in ordinary

circumstances the Petitioner may be right in contending that a fresh

reference was required to be made in pursuance of application dated 25

April 2024 under provisions of Rule 61(4) of the ID (Central) Rules.

However, in the present case, the Regional Labour Commissioner was

already seized of the issue of conferment of status of protected workmen

on o�ce bearers of Respondent No.3-Union. As a matter of fact, the

Petition dated 13 December 2023 was apparently not supported by any

underlying application required under provisions of Rule 61(1) of the ID

(Central) Rules. The prescribed procedure under Rule 61 of the ID

(Central) Rules contemplates making of an application by the registered

Trade Union to the employer before 30 April of every year and the

employer communicating decision thereof within 15 days. As observed

above, even failure on the part of the employer to give response to such

application results in 'dispute' within the meaning of Rule 61(4) of the ID

(Central) Rules and in such event, the said dispute can be adjudicated by

the Regional Labour Commissioner under Rule 61(4) of the ID (Central)

Rules. It appears that the Petition dated 13 December 2023 was directly

made by Respondent No.3-Union to the Regional Labour Commissioner

without �rst addressing an application under Rule 61(1) of the ID

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(Central) Rules to the employer. However, during pendency of that

Petition, Respondent No.3-Union corrected its action and �led

application dated 25 April 2024 to the employer. The said application

dated 25 April 2024 was perfectly within the requirement of Rule 61(1) of

the ID (Central) Rules. Since Petitioner-Management failed to respond to

the said application dated 25 April 2024, a dispute got created for the

purpose of being adjudicated by the Regional Labour Commissioner

under Rule 61(4) of the ID (Central) Rules. In that view of the matter, it

cannot be stated that no dispute existed qua application dated 25 April

2024 for being adjudicated by the Regional Labour Commissioner. On

account of failure on the part of Petitioner-Management to decide the

application dated 25 April 2024 within a period of 15 days, though there

is no deemed conferment of status of protected workmen, a dispute

de�nitely got created within the meaning of Rule 61(4) of the ID

(Central) Rules and such dispute has rightly been adjudicated by the

Regional Labour Commissioner. I therefore do not �nd any jurisdictional

error being committed by the Regional Labour Commissioner in

entertaining and deciding the dispute arising out of application dated 25

April 2024.

37)The matter can be viewed from another angle as well. No possible

prejudice is caused to the Petitioner on account of the decision of dispute

arising out of application dated 25 April 2024. Though Mr. Bapat has

sought to contend that the Regional Labour Commissioner has virtually

granted deemed recognition to �ve named o�ce bearers merely on

account of failure on the part of the Petitioner to respond the application

within a period of 15 days, I am unable to agree with the said contention.

As observed above, the correct reading of the observations made by the

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Regional Labour Commissioner in the impugned order qua application

dated 25 April 2024 is that a dispute arose on account of failure on the

part of Petitioner-Management to decide the application dated 25 April

2024 within a period of 15 days and the said dispute has been

adjudicated by the Regional Labour Commissioner. It is not the case of

the Petitioner that any of the �ve o�ce bearers of the Respondent No.3-

Union face any disquali�cation/disability for grant of status as protected

workmen. It is also not the case of Petitioner that what it operates at

Pune is not an ‘establishment’ within the meaning of Section 2 (ka) of

the ID Act. Mr. Bapat in fact fairly admits that Petitioner operates an

establishment at Pune. Therefore, in respect of establishment of the

Petitioner at Pune, minimum of �ve persons are required to be granted

status as protected workmen. The Federation itself has clari�ed that it

only negotiates issues on national level and it is Mr. Sawant’s case that

the local issues are agitated by the Respondent No. 3 Union. All that will

happen by the impugned order is that the o�ce bearers of the local union

(Respondent No. 3) shall also enjoy the protection under Section 33 of the

ID Act.

38)Therefore, there is no error on the part of the Regional Labour

Commissioner in conferment of such status on �ve o�ce bearers of

Respondent No.3-Union. So far as the contention of Mr. Bapat about

some of the o�ce bearers of the Federation being already recognized as

protected workmen is concerned, the same was done by email dated 5

June 2020. There is nothing on record to indicate that for subsequent

years, and particularly for the year 2024-25 any o�ce bearers of the

Federation are also recognized as protected workmen. Thus, there is no

violation with regard to the speci�ed number of workmen to be conferred

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the status of protected workmen. Therefore, it cannot be stated that the

impugned order passed by the Regional Labour Commissioner su�ers

from any serious error. Therefore, even if the technical objection sought

to be raised by Mr. Bapat about decision of application dated 25 April

2024 was to be accepted, the impugned order would still be sustained.

However as observed above, even that technical objection raised by the

Petitioner is meaningless and deserves to be rejected.

39) Mr. Bapat's reliance on interim order of Delhi High Court in

Tata Telecommunications Limited vs. Union of India and ot hers

7

does not cut any ice. The said order, again being a mere interim order

and has been passed in the light of peculiar circumstances where the

concerned o�ce bearer of Delhi Unit was also found to be the Assistant

General Secretary of the Federation.

40)I therefore �nd that there is no warrant for interference in the

impugned order passed by the Regional Labour Commissioner.

E. O RDER

41)The order passed by the Regional Labour Commissioner is thus

unexceptional. Writ Petition is devoid of merits. It is accordingly

dismissed without any order as to costs.

(SANDEEP V. MARNE, J.)

7 Order dated 8 March 2022 passed in Writ Petition (C) No. 3743 of 2022

katkam Page No. 29 of 29

SUDARSHAN

RAJALINGAM

KATKAM

Digitally signed

by

SUDARSHAN

RAJALINGAM

KATKAM

Date:

2024.11.19

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