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Judgment
Sudhanshu Dhulia, J
Petitioner no. 1 is the registered Trade Union of the workers in the factory of which at the relevant time petitioner no. 2 was the President and was an office bearer of the Union. His name was sent by the Union in the list of protected workers in the year 2016-17 well in time and thereafter under the provisions of Rule 29 of the U.P. Industrial Disputes Rules, 1957 read with the U.P. Industrial Disputes Act, 1947 (from hereinafter referred to as the "Act"), the petitioner no.2 was declared as a "protected workman". Rule 29 of the U.P. Industrial Disputes Rules, 1957 reads as follows:-
"Rule 29. Recognition of protected workmen.- (1) A Union desirous of recognition of its officer or officers as "protected workman", shall, before the 1st day of September every year submit an application in Form XII to the Registrar, Trade Unions, Uttar Pradesh, Kanpur, appointed by the State Government under the Indian Trade Unions' Act, 1926 (Act XVI of 1926).
(2) On receipt of an application under sub-rule (1), or on his own initiative if no such application is received, the Registrar of Trade Unions may, after making such enquiries as he may consider necessary, pass appropriate orders in the matter. Such orders shall be communicated to the Union and the employer concerned and also to the Conciliation Officer of the area concerned.
(3) The names of protected workmen recognized under sub-rule (2) above, shall be entered in a register in Form XII to be maintained in the office of the Registrar of Trade Unions, Uttar Pradesh. The register can be inspected by the person on payment of a fee of Re. 1 during such hours as may be prescribed by the Registrar of Trade Unions, Uttar Pradesh.
(4) The recognition given to an officer under sub-rule (2) shall remain in force till the 31st day of October of the year following that in which the order giving such recognition is made.
(5) If a vacancy occurs amongst the protected workmen by the reason of any such workmen having died or not remaining in service or for any other reason, the Union concerned shall, within one month of the occurrence of such vacancy, inform the Registrar of it. The Registrar may fill the vacancy after such enquiry as he considers necessary."
Under sub-rule (1) of Rule 29, the Union has to send a list of protected workers in Form XII to the Registrar Trade Unions (in the present case, the Registrar Trade Unions of Uttarakhand) before 1st day of September every year. For the year i.e. 2017-18, the Union had again sent a list of five protected workers, which is as follows:-
"1. Sanjeet Kumar Vishwas
Arjun Prasad
Bheem Sen Bind
Devendra Singh
Deepak Prasad"
The said list was received by the Registrar Trade Unions on 30.08.2017. Under sub-rule (2) and (3) of Rule 29 it was the duty cast upon the Registrar to have passed appropriate orders and communicate the same to the Union and the names ought to have been entered in the register in Form XII which is maintained in the office of the Registrar Trade Unions, Uttarakhand. Under sub-rule (4) of Rule 29 the recognition so granted shall remain in force till 31st day of October of the year following that in which the order giving such recognition is made and then the vacancy in case it arises has to be filled in as per the provisions given in sub-rule (5) of Rule 29.
In this case, petitioner no. 2 was already facing a departmental inquiry as he had raised the demand of the Union before the employer. Therefore in the best interest of the Union, the name of petitioner no. 2 was sent again as already been referred above as a "protected workman", which was received in the office of Registrar Trade Unions on 30.08.2017, i.e. well in time. Although there is no stipulation in Rule 29 as to when exactly the order has to be passed by the Registrar Trade Unions or even within what period he has to finish the inquiry as contemplated under sub-rule (2) and (3), but a holistic view has to be taken here and a bare reading of the entire provisions contained in Rule 29 would disclose that since the protected workman becomes a protected workman from 1st November of the same year, the decision has to be taken by the Registrar before 1st of November of that year in order to make it effective.
In the present case, what has happened is that the decision itself was taken in February 2018 accepting the four names, out of the five names recommended by the Union as protected workmen. In other words, barring the petitioner no. 2 Sri Sanjeet Kumar Vishwas, all other names were accepted. It is indeed another matter that the list of protected workmen has been made effective from 1st November, 2017 but meanwhile the events which have taken place have an important bearing in the case.
On 13.11.2017 the services of petitioner no. 2 were terminated by the employer. Meanwhile, the Registrar has also refused to register the Trade Union vide order dated 02.07.2018 stating that the renewal is being sought of the Union of which the terminated workman has been shown to be a President. Both these two orders have been challenged.
As far as refusal to the Trade Union is concerned, the present matter cannot be taken into consideration. This Court will only look into the aspect as to the status of petitioner no. 2 whether he was a protected workman or not?
Before this Court a preliminary objection has been raised by the learned counsel for the employer Sri Vikas Kumar Guglani and he has prayed that this writ petition be dismissed as non-maintainable for the reason that the petitioners have raised an industrial dispute which is liable to be raised before the Industrial Tribunal.
"Industrial dispute" is defined under section 2(l) of the U.P. Industrial Disputes Act, 1947 which is as follows:-
"2. Definitions.-
(l) 'Industrial Dispute" means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the term of employment or with the conditions of labour, of any person; but does not include an industrial dispute concerning-
(i) any industry carried on by or under the authority of the Central Government or by a Railway Company, or
(ii) such controlled industry as may be specified in this behalf by Central Government, or
(iii) banking and insurance companies as defined in the Industrial Disputes Act, 1947, or
(iv) a mine or an oil-field;"
The argument of the learned counsel for the petitioners would be that it is actually not an industrial dispute because it is not a dispute between the employer as contained in Section 2(l) of the Act inasmuch as it is not a dispute between the employers and employers, or between employers and workmen, or between workmen and workmen. It is simple a case where the Registrar Trade Unions has passed an order belatedly though he was duty bound to pass that order before 1st November of that year. It would have been even refused the claim of the Trade Union for registering the name of petitioner no. 2 as a protected workman if something adverse would have come out in the inquiry which is contemplated under sub-rule (1) and (2) of Rule 29, but it has not been done. The Registrar Trade Unions kept on sitting with the matter and thereafter has rejected the claim of petitioner no. 2 for being recognized as a protected workman after his services had already been terminated on 13.11.2017 at a time when he was not a protected workman as initial protection granted to petitioner no. 2 came to an end on 31.10.2017.
Section 6-E and Section 6-F read with Rule 29 are all beneficial provisions which are for the protection of a workman and this can only be effective and meaningful provisions if it is applied and brought into use in its true letter and spirit. The protected workman has certain purposes which is that such office bearer of the Union who may on occasion raises a demand of workers as against the employer are generally susceptible for an adverse action by the employer. In order to make the representation of the Union effective before the employer, the law protects an office bearer of the Union as he can be declared as a protected workman, if the Union so desires. This is of course, subject to inquiry and the ultimate orders of the Registrar Trade Unions, but such orders must be passed in order to give a protected layer to such office bearers of the Union. Since in this case, the Registrar Trade Unions had failed to pass an order bringing the name of the petitioner no. 2 in Form XII and declaring him to be a protected workman and considering the fact that the petitioner no. 2 was already continuing as a protected workman earlier being the President of the Trade Union, the delayed action on the part of the Registrar should not adversely affect the services of petitioner no. 2. Since no order was passed till 31.10.2017, it will be deemed that petitioner no. 2 had become the protected workman and since he was a protected workman, he was liable to get the protection given to a protected workman under the law, which includes protection under Section 6-E of the Act.
This Court is not passing any further orders on this aspect inasmuch as even if there has been a violation of Section 6-E of the Act (which grants certain protection and prohibits the employer to change the conditions of a protected workman), the remedy lies under Section 6-F of the Act and therefore the remedy thereafter would be to raise an industrial dispute or to move to the Labour Court or Tribunal, as the case might be.
In view of the above, the writ petition stands disposed.