Certain trade union leaders affiliated with the establishments are protected by law while the Industrial disputes Act is being applied to their case. This official is protected against any action that the employer takes against him, including any kind of penalty or unfavorable change to his terms of employment. Instances involving "protected workmen" are covered by section 33(3), which also includes instances involving proposed orders for discharge or dismissal or cases involving changes to service conditions that fall under section 33(1).

The legislators define "protected workmen" as those who undertake the difficult responsibility of defending the rights of their fellow employees. The parliament created section 33 and granted them protection to shield them from the employer's wrath and to save them from management pressure.

The section functions as a prohibition on the employer's ability to take action against the official in the same way as provided by section 33(1).

Section 33 merely compels management to submit its action for review in court as an application for approval to take action against these workers; it does not take away any of their current rights.

"While the adjudication or conciliation proceedings relating to an industrial dispute are pending between the workmen and the employer, a protected worker enjoys immunity against being dismissed or discharged."

A protected worker is "any workman who is a member of the executive or other office bearer of a registered trade union," according to the explanation provided in section 33(3).

A person is only granted immunity under this clause if specific requirements are met. First and foremost, he ought to be employed by the relevant agency. Second, he needs to be an officer of a trade union affiliated with the establishment and registered under the Trade Unions Act of 1926. Thirdly, in compliance with the regulations established by the relevant government, the employer shall acknowledge the employee's status as an official of the registered trade union.

Object and Purpose of S. 33

The courts have emphasized the justifications for the "protected workman's" broad protection in a number of judgments. "The legislature appears to be anxious, for the interest of healthy growth and development of trade union movements, to ensure for such a workman complete protection against every action or order of discharge or punishment for his special position as an officer of a registered trade union recognized as such in accordance with rules made in that regard," it was stated in Gyanendra Mani Tripathi v. Hindustan Aeronautics Ltd.

The parliament understood that workers need protection in the event of a disagreement between their competing and conflicting goals, as employers and employees have different goals.

Recognition of Protected Workmen

According to Section 33(4), there must be one percent of protected workers in every establishment, with a minimum of five and a maximum of one hundred workers. It also gives the relevant government the authority to set regulations governing the selection, recognition, and allocation of protected workers among the establishment's several trade unions.

In accordance with Central Rules Rule 61, all registered trade unions are required to submit the names and addresses of their office bearers by April 30 of each year in order to be eligible for this privilege.

Before an employee can claim to be a protected worker for the purposes of section 33, the employer must take affirmative action, i.e., the employer must send a confirmation on the recognition of the employee as a protected worker.

According to rule 61, the management must release the list of protected workers within 15 days of the union's letter.13 However, courts have held that an employer's simple failure to notify within that time frame will not constitute deem recognition unless a specific provision exists in the standing order. In the event that the employer fails to provide recognition within the allotted time frame, the union retains the right to contact the labor officer.

But the aforementioned law was contested, and the union now has more rights. The Supreme Court ruled that if management does not reply to the union's notice within the legally mandated 15 days, it grants the members the status of protected worker to those that the union has identified for recognition, and the management is then unable to contest this designation. They can only raise a challenge afterwards if they can demonstrate that the workers on the list were not entitled to this benefit.

Myths and Realities about Protected Workman

The management and trade unions are currently at odds over the meaning of the term "protected worker." Instead of providing a much greater scope for this privilege than is really allowed by law, they assume it without accurately appreciating its meaning as defined by the law. Trade unions frequently take full use of this legal power, misusing it for a variety of reasons and even breaking the law.

First of all, it's a prevalent misperception that Section 33 offers "absolute protection" for protected workers, meaning they are immune to termination or dismissal while an adjudication, conciliation, or arbitration is ongoing and are not subject to covert punishment.

According to the legislation, a protected worker does not have "absolute freedom" to do anything they choose while they are in this position. According to a ruling by the Supreme Court, an employer is impliedly permitted to suspend while legal matters are pending, although employees will still be paid during that time. This inference, however, is dependent on whether the standing orders provide for paid suspension for a set amount of time or none at all.

Furthermore, with the express written consent of the authority before which the process is continuing, the establishment may begin disciplinary measures even while an industrial dispute is still pending if the employer discovers any misbehavior against protected workers.

Second, only a specific proportion of workers must be acknowledged as protected workers for the purposes of section 33(3), according to section 33(4). One percent of all workers employed by the establishment, up to a maximum of one hundred, will be designated as protected workers. Consequently, the idea that the employer has a "wide extent of discretion provided to them" in selecting which employees will receive this privilege has been discussed.

Employers are only forced to make a decision if the number of workers who are inadvertently elected to hold office exceeds one percent. However, the union gains the upper hand once more over the employer because, even in cases where the employer selects up to one percent from the list, the trade union is granted the opportunity to object in front of the labor commissioner. Nevertheless, the employer is required to accept the list without further consideration if it includes the precise number of office holders who must be acknowledged.

Only the desirability or eligibility of any office bearer proposed by the union for recognition may be taken into consideration by the management. The Supreme Court ruled that the management might request union records to find out how the workers who want to be classified as protected were chosen, elected, or nominated to hold position in the registered trade union. And they can only reject the nomination of such an office bearer if they discover a good reason. For example, the management has the authority to decline if the official is the subject of ongoing criminal proceedings or if there are any other valid reasons.

Conclusion
As a result, the section 33 immunity of protected workers has grown to be an extremely complicated, divisive, and difficult topic. It is concerning how the trade unions have misunderstood the aim, target, and extent of this protection. The union has a privilege that cannot be overused, and its charitable goals must not be compromised. Trade unions attempt to use this privilege to defend every action and every office holder, but ultimately, their own incorrect assumptions about the extent of privilege cause them to suffer grave repercussions. They fail to recognize their own abuse of their rights and place the blame for it on the company and management.

It is evident from previous cases that employers have far fewer rights than trade unions, contrary to popular belief. It is past time for trade unions to understand that the advantages granted to them are not absolute and must be used for the purposes for which they are intended in order to accomplish legislative goals, as opposed to being used as a safety net.

Written By: Akanksha