There is no law which protects a non performing or troublesome trade union leader. The 33(3) of Industrial Disputes Act which deals with protected employee (of a trade union) only says that at the time when a dispute is in pending conciliation before Labour Officer or Courts, disciplinary action can not be taken against a protected labour without permission from the said conciliation officer/ labour court, as the case may be. But in that also, if the disciplinary action is initiated for a misconduct not related to the dispute which is pending before conciliation/ court, action can be taken even if the person is a protected workman.
Therefore, in theory (I would use the word in theory) there is nothing illegal in taking action against a trade union member. But in practice it is very difficult to frame charges against the worker especially when it is related to 'attitude' which is just a non measurable or unquantifiable human behavior. If the charges is like theft, insubordination or smoking inside the factory premises or sleeping while on duty, we have a proof and is quantifiable also, whereas if you say that the attitude of a worker is bad, for some other it may not be that much bad as you think. There may be a number of followers or witnesses in favour of that worker who will say that the attitude is not bad or rather is good. In the eyes of employer/ Manager a worker questioning the service conditions or physical conditions of the factory where the workers are doing their work, will be marked as one having bad attitude but for others it may not be like that.
If you can frame charges on the basis of productivity of the employee, you can do that. You will have to take average out put per worker and should have a comparative study of it with other workers and then come to a conclusion that the union leader has not been giving the required result and on the basis of that you can issue a charge sheet and start disciplinary action. The analysis should be made on the basis of qualification, experience, training given and the grade of the employees. Otherwise the enquiry will become weak and will be treated as an attempt to victimise the union leader who has been part of the company for the last 10 -15 years.
When you initiate disciplinary action against a union leader, you can expect a kind of non cooperation from the workers following him and that may result in further loss of production. These are the practical side of it. I would suggest that you should be more practical and should conduct a lot of home work before dealing with such kind of employees.
Regards,
Madhu.T.K