PARTin

TRADE UNIONS, COLLECTIVE BARGAINING

AND TRIPARTISM

I. TRADE UNIONS

Trade union is an outcome o f the factory system. It is based on labour philosophy-

“united we stand, divided we fall.” Industrial revolution in India has changed the
traditional outlook in the labour management relationship. With the introduction of
the modem factory system personal relationship between employer and employee
disappeared and it, in fact, has given rise to many social and economic evils which
made it imperative on the part o f the workers to devise an effective means to contact
employers and to bargain with them. Formation ;of trade union has provided an ideal
solution.' Even though labour movement started as early as 1860s but trade unioh'
movement, as we understand today, really developed in the 20th century. However,
unlike the United Kingdom and other industrially advanced countries it did not
have to undergo the same trials and tribulations because, by then, opinion all over
the western world had crystallized itself in favour o f permitting workmen to form
trade unions, and against their persecution, provided they are pursued for legiti­
mate trade union objectives.
The initiation o f legal proceedings against Mr. B.P. Wadia, President o f the
Madras Labour Union and issue o f injunction against him in 1920 for inciting work­
ers to go on strike resulted in agitation by the political leaders in India, as well as by
the British Labour Party, in which a demand was made for trade union legislation
and their activities. The formation o f the ILO in 1919 o f which India was a founder
member, the active interest taken by the nationalist movement in the organisation of
the working class, and the formation o f the AITUC in 1920, also helped the process.
The result was that the (Indian) Trade Unions Act, 1926 was passed.

' S.C. Srivastava, Industrial Relations in Labour Laws. Vikas Publishing House, New Delhi
(2006) p. 43.
102 L a bo u r L aw and L a b o u r R elations

With the passing o f the Trade Unions Act, 1926, India’s quest for industrial
harmony can be said to have commenced, some what inarticulately, but in a demo­
cratic way. As a result the fundamental right o f freedom o f association was im­
pliedly recognised and in that sense organised trade union movement assumed
legitimacy.^ But the right to form associations or unions could receive the constitu­
tional guarantee only after Constitution o f India came into force in 1950.
The Trade Unions Act o f 1926 provides for registration o f trade unions. The
object o f registration, presumably, is to encourage the growth o f permanent and
stable unions. Although such registration is voluntary, the statutory benefits, such
as immunity from criminal conspiracy in trade disputes and from civil suits in certain
cases, are made available to registered unions oniy.^ A registered trade union
obtains a corporate personality and also powers to contract, to take and hold
property, and to sue and be sued.'’
Even though the Trade Unions Act, 1926, had undergone several amend­
ments, no major changes were made till 2001. The Trade Unions (Amendment) Act,
2001 which came into force with effect from 2002 has brought several changes o f
great significance.

A. M ode of Registration

Any seven or more persons can apply for registration. However, no Trade Union of
workmen shall be registered unless at least ten per cent or one hundred o f the
workmen, whichever is less, engaged or employed in the establishment or industry
with which it is connected are the members o f such Trade Unions on the date o f
making the application for registration. But in an establishment employing less than
70 workmen no Trade Union o f workmen shall be registered unless it has on the
date o f making the application not less than seven persons as its members, who are
workmen engaged or employed in the establishment or industry with which it is
connected.^ An application for registration once made in the required manner can­
not be held invalid if at any time after such an application and before the registra­
tion, some o f the applicants, but not exceeding half o f them, have ceased to be
members o f the Trade Union or have disassociated themselves from the applica­
tion.

■ Govt, of India, Report o f the National Commission on Labour (1969) pp. 55-56.
^ Trade Unions Act. 1926, ss. 17 and 18.
*Id.,s. 13.
5 Id., s. 4.
 T r a d e U n io n s , C ollective B a r g a in in g a n d T ripa rtism 103

B. Rules o f a Trade Union

Under Section 6 a Trade Union shall not be entitled for registration unless the
executive thereof is constituted in accordance with the provisions o f this Act and
the rules thereof provide for the following matters, namely:—
(a) the name o f the Trade Union;
(b) the whole o f the objects for which the Trade Union ,has been established;
(c) the whole o f the purposes for which the general flinds o f the Trade Union
shall be applicable, all o f which purposes shall be purposes to which such
fiinds are lawfully applicable under this Act;
(d) the maintenance o f a list o f the members o f the Trade Union and adequate
facilities for the inspection thereof by the office-bearers and members of
the Trade Union;
(e) the admission o f ordinary members who shall be persons actually en­
gaged or employed in an industry with which the Trade Union is con­
nected, and also the admission o f the number o f honorary or temporary
members as office-bearers required under Section 22 to form the executive
o f the Trade Union;
(f) the conditions under which any member shall be entitled to any benefit
assured by the rules and under which any fine or forfeiture may be im­
posed on the members;
(g) the manner in which the rules shall be amended, varied or rescinded;
(h) the manner in which the members o f the executive and the other office­
bearers o f the Trade Union shall be elected and removed.®

C. M em bership Fee
The minimum rates for subscription o f membership shall be
Re. 1 per annum for rural workers.
Rs. 3 per annum for workers in other unorganised sectors; and,
Rs. 12 per annum in the case o f others.
It shall, however, be competent for any union to charge a higher rate o f mem­
bership fee.’

^S.6.

’ /bid
10 4 L a b o u r L aw and L a b o u r R elations

D. Cancellation of Registration
A certificate o f registration o f a Trade Union may be withdrawn or cancelled if the
Registrar is satisfied that (i) it has been obtained by fraud or mistake, or (ii) the
Trade Union has ceased to exist, or (iii) has wilfully and after notice from the
Registrar contravened any provision o f this Act, or (iv) allowed any rule to continue
in force which is inconsistent with any such provision, or (v) has rescinded any rule
providing for any material provision which is required by Section 6, or (vi) a registered
Trade Union o f workmen ceases to have the requisite number o f members,* The
union can appeal in the Civil Court against the order o f the Registrar either for
refusing registration or for withdrawing or cancelling registration certificate.^

E. Outsider in Trade Union

The significant feature o f Indian Trade Union is outside leadership. Under section
22 (except in an unorganised sector) all office-bearers except not less than one third
o f the total number of the offvce-bearers or five, whichever is less, o f every regis­
tered Trade Union shall be persons actually engaged or employed in an industry
with which the Trade Union is connected. However, the appropriate Government
may by special or general order declare that the provision o f this section shall not
apply to any Trade Union or class o f Trade Unions specified in the order.
An employee who has retired or has been retrenched shall not be construed as
outsider for the purpose o f holding an office in a Trade Union. Further, no member
o f the Council o f Ministers or a person holding an office o f profit (not being in
engagement or employment in an establishment or industry with which the Trade
Union, is connected), in the Union or a State, shall be a member o f the executive or
other office-bearer o f a registered Trade Union.

F. Recognition of Trade Unions

Recognition o f frade union is the backbone o f trade unions. However, there is no
provision in the Trade Unions Act, 1926 for recognition o f trade unions by the
management. The Trade Unions (Amendment) Act, 1947, however, provided that
registered trade unions could seek recognition from employers if they satisfy the
conditions laid down in section 28D. But this Act was never implemented and
remained in the statute book. To fill this gap the 16th Session for the Indian Labour
Conference provided for recognition o f the unions, and laid down the following
conditions for the purpose;

* S. 10.
^ S. I I .
 T r a d e U n io n s , C o l lective B a r g a in in g a n d T ripa rtism 105

(i) Where there is more than one union, a union claiming recognition should
have been functioning for at least one year after registration. Where there
is only one union, this condition would not apply.
(ii) The membership o f the union should cover at least 15 per cent o f the
workers in the establishment concerned. Membership would be counted
only o f those who had paid their subscriptions for at least three months
during the period o f six months immediately preceding the reckoning.
(ii!) A union may claim to be recognized as a representative union for an
industry in local area if it has a membership o f at least 25 percent o f the
workers o f that industry in that area.
(iv) When a union has been recognized, there should be no change in its
position for a period o f two years.
(v) Where there are several unions in an industry or establishment, the one
with the largest membership should be recognized.
(vi) A representative union for an industry in an area sl]'ould have the right to
represent the workers in all the establishments iri the industry, but if a
union o f workers in a particular establishment has a membership o f 50 per
cent or more o f the workers o f that establishment it should have the right
to deal with matters o f purely local interest such as, for instance, the
handling o f grievances pertaining to its own mernbers. All other workers
who are not members o f that union might either operate through the repre­
sentative union for the industry or seek redress directly.
(vii) In the case o f trade union federations, which are not affiliated to any o f the
four central organizations o f labour, the question o f recognition would
have to be dealt with separately.
(viii) Only unions, which observed the Code o f Discipline, would be entitled to
recognition.

T. T. DEVASTHANAM v. COMMISSIONER OF LABOUR

Andhra Pradesh High Court, (1979) 1 LLJ 448

[Excerpts from the judgment o f Alladi Kuppuswami J.]

Section 2 (h) o f the Trade Unions Act, defines “trade union” as follows;
“Trade union” means any combination whether temporary or permanent, formed
primarily for the purpose o f regulating the relations between workmen and employ­
ers or between workmen and workmen, or between employers and employers, or for
106 L a b o u r L aw and L a b o u r R e lations

imposing restrictive conditions on the conduct o f any trade or business, and in­
cludes any federation o f two or more trade unions.
It is clear from this definition that the combination is formed for regulating
relations between workmen and employers or between workmen and workmen or
between employers and employers. In the recent case the combination, which has
been registered as a trade union, is one o f workmen. In order to understand the
meaning o f workmen, we have to turn to S. 2 (g) o f the Trade Unions Act, which
defines the trade dispute to mean :
“ any dispute between employers and workmen or between workmen and
workmen....
In the same sub-section it is stated that workmen means all persons employed
in trade or industry whether or not in the employment o f the employer with whom
the trade dispute arises. Though from the fact the definition o f “workmen” appears
as part o f the definition of “trade dispute”, under S. 2 (g) it would indicate that the
definition is only for the purposes o f that sub-section, in the absence o f any other
definition of the expression “workmen”, it would be reasonable to adopt this defini­
tion even where that expression occurs in other parts o f the Act. Reading these two
sub-sections together, it is clear that in order that a combination o f workmen should
be a trade union, such workmen must be persons employed in a trade or industry.
The question, therefore, ultimately resolves itself into considering whether the
Tirumala Tirupathi Devasthanam in which the workmen are employed is a trade or
industry. The institution in which the workmen have been employed should be in
the nature of industry is also clear from S. 22 of the Trade Unions Act which says
that not less than one-half o f the total number o f the office bearers o f every regis­
tered trade union shall be persons actually engaged or employed in an industry
with which the trade union is connected.
The expression “trade or industry” is not defined in the Trade Unions Act. But
the meaning o f the expression “industry” as used in the Industrial Disputes Act
has been the subject matter o f consideration by the Supreme Court in a number o f
cases. In that Act “industry” is defined as meaning any business, trade, undertak­
ing, manufacture, or calling o f employers and includes any calling, service, employ­
ment, handicraft, or industrial occupation or avocation o f workmen. (Vide S. 2 (j) o f
the Act). In the absence o f any definition o f “industry” in the Trade Unions Act, it
appears to us that the same considerations which have been held to be relevant for
the purpose o f holding whether an institution is an industry or not under the
Industrial Disputes Act, would be equally relevant for the purposes o f the Trade
Unions Act....
 T r a d e U n io n s , C ollective B a r g a in in g and T ripa rtism 107

[After referring to a host o f Supreme Court cases—State o f Bombay v. Hospi­

tal Mazdoor Sabha, (1960) 1 LLJ 251; Nagpur Corporation v. Its Employees, AIR
1960 SC 675; University o f Delhi v. Ramnath, (1963) 2 LLJ 335; Madras Gymkhana
Club Employees ’ Union v. Management, (1967) 2 LLJ 720; Bombay Pinjrapole v.
Workmen, (1972) 2 LLJ 393; etc. Aliadi Kuppuswami J. held; ]
...,[W]e are o f the view that the electricity and water departments o f the Tirumala
Tirupathi Devasthanam will be an industry or analogous to an industry and the
employees in those departments would be workmen within the meaning of the
Trade Unions Act, and they will be entitled to register themselves as a Trade Union.
W.P. No. 840 of 1976 is dismissed....

INDIAN OXYGEN LTD. v. THEIR WORKMEN

Supreme Court, (1969) 1 LLJ 235

[Certain disputes arose between the compaiiy and its worianen at the Jamshedpur
branch over the question o f overtime payment and the union’s right to attend
various meetings and conventions during the working Jiours. The matter was re­
ferred by the government to the industrial tribunal for adjudication. The tribunal
allowed overtime not only to the company’s workmen at Jamshedpur but also to
workmen employed in other establishments o f the company as well on the basis of
the amendment o f the constitution o f the union extending its membership to work­
men o f ail branches. The company preferred an appeal to the Supreme Court by
special leave. The questions which arose for consideration were: (i) whether'the^
union could change its constitution and extend its membership in the light o f
sections 6 (9), 28 (3), 29 and 30 (3) and regulation 9 o f the Trade Unions Act?;
(ii) whether the award o f the tribunal could be made operative only to the workmen
of the Jamshedpur branch but also to all the workmen o f the company?; (iii) whether
the workmen were entitled to overtime payment and also whether the union had a
right to attend various meetings on special leave with pay? Excerpts from the
judgment o f the court, delivered by Shelat J. follow:]

The first contention urged on behalf of the appellant-company was that, the
tribunal was in error in making its award operative not only to the said workmen at
its Jamshedpur factory but also to workmen at its other establishments and that in
doing so it acted beyond jurisdiction. In our view this contention must be upheld.
In the first place, the agreement by which the parties agreed to refer the said
disputes for adjudication was clearly between the management o f the appellant-
company’s factory at Jamshedpur and the workmen employed in that factory and
108 L a b o u r L aw and L a b o u r R elations

represented by their said union, the Indoxco Labour Union....

There was no evidence before the tribunal that similar demands were raised by
the workmen engaged in the appellant company’s other establishments. Even as­
suming that the Indoxco Labour Union validly amended its constitution so as to
extend its membership to the company’s other workmen in its other establishments
inasmuch as the disputes referred to the tribunal were only those set out in the said
agreement and the said statement, any award made by the tribunal in respect of
these disputes must necessarily be confined to the disputes referred to it, the
parties to those disputes and the parties who had agreed to refer those disputes for
adjudication.
Next, as to the claim o f the union that it had amended its constitution on 6
January, 1963 and, therefore, as the workmen o f the factory at Jamshedpur came
henceforth to be represented by the Indian Oxygen Workers’ Union which repre­
sented also workmen employed in the appellant-company’s other establishments,
the reference extended to them also and the tribunal’s award would cover them also.
We fail to see any connection between the purported amendment o f the union’s
constitution and the reference made by the Government on the basis o f the said
agreement and the said statement. These, as aforesaid, related to the disputes
between the management and the workmen o f the appellant-company’s factory at
Jamshedpur who alone had made the aforesaid demands and disputes arising from
those demands only were agreed to be referred to and were actually referred to the
tribunal by the said notification. There is nothing to show in that notification that
other workmen o f the company had raised similar demands or that there were any
disputes existing or apprehended which were included in that reference.
The question next is whether the union’s constitution was duly amended on 6
January 1963 as claimed by the union and held by the tribunal....
The combined effect o f Ss. 6 (g), 28 (3), 29 and 30 (3) and Regn. 9 is that a
registered union can alter its rules only in the manner provided in these provisions,
that is, it has to send the amended rules to the Registrar within fifteen days from the
amendment and until the Registrar is satisfied that the amendments are in accor­
dance with the rules o f the union and on such satisfaction registers them in a
register kept for that purpose and notifies that fact to the union’s secretary, the
amendments do not become effective. The union did not produce any evidence to
show that the amendments purported to have been earned out by the said resolu­
tion dated 6 January 1963 were sent to the Registrar as provided in the aforesaid
provisions, nor did it produce any communication o f the Registrar notifying the
fact o f his having registered the said amendments. The only evidence it produced
was its letter dated 21 May 1964 to the appellant-company which indicated that the
 TRADE U n io n s , C o l lective B a r g a in in g and T ripartism 10 9

Registrar notified to the union o f his having registered the said amendments on 13
May 1964. The tribunal’s conclusion, therefore, that the union’s constitution was
duly amended on either 6 or 21 January 1963 or that, therefore, the Indian Oxygen
Workers’ Union represented the workmen o f the company’s factory at Jamshedpur
and that consequently it made no difference that the name o f Indoxco Labour
Union as representing the workmen concerned was mentioned in the said agree­
ment and the said statement and not that o f the Indian Oxygen Workers’ Union is
erroneous and cannot be sustained. Any award, therefore, made by the tribunal in
these circumstances can operate only in respect o f the workmen o f the appellant-
company’s factory at Jamshedpur and the tribunal’s extension o f that award to
workmen in the company’s other establishments was clearly without jurisdiction....
As regards demand 5 ....the appellant-company has been allowing those o f its
workmen who are the union’s representatives to attend, without loss o f pay, pro­
ceedings before conciliation officers and industrial tribunals. This is fair because
conciliation proceedings are likely to get thwarted if the workmen’s representatives
are not there to discuss the disputes and put forward their point o f view before
conciliation officers and wherever possible to arrive at a settlement or compromise.
Over and aljove this facility, the workmen get various types o f paid leave.... it is
impossible to say that the leave granted by the company with fiill pay is not fair or
even liberal. In conceding the demand o f the union the tribunal does not appear to
have considered the adverse effect on the company’s production if further absen­
teeism were to be allowed especially when the crying need.ofthe country’s econpmy-
is more and more production and employers are exhorted to streamline their man­
agement to achieve this objective and to bring down their cost in line with interna­
tional cost. In awarding this demand the tribunal also did not specify on how many
occasions the executive committee meetings of the union and other meetings would
be held when the company would be obliged to give special leave with pay to the
union’s representatives. Similarly, there is no knowing how many delegates the
union would send to attend the conventions o f the federation and the. Indian
National Trade Union Congress. The tribunal could not, in the very nature o f
things, specify or limit the number o f such meetings, for such an attempt wo^d.,
amount to interference in the administration o f the union and its autonomy. Its
order must, o f necessity, therefore, have to be indefinite with the result that the
appellant company would not know beforehand on how many occasions and to
how many o f its workmen it would be called upon to grant special leave. Further, in
case there are more than one union in the company’s establishment, the represen­
tatives o f all such unions would also have to be given such leave to attend the
aforesaid meetings.
110 L a b o u r L aw and L a b o u r R elations

A healthy growth o f trade union movement undoubtedly would lead to indus­

trial peace and harmony and consequently to higher efficiency. But a demand o f the
type we have before us has to be considered from all aspects and its implications
and results have to be properly examined. In considering such a demand, the first
question which strikes one is as to why the meetings o f the executive committee o f
the union cannot be held outside the hours o f work. It was said that it may not be
possible to do so, if an emergency arises. But emergencies are not o f regular occur­
rence and if there be one, the representatives can certainly sacrifice one o f their
earned leave. There can obviously be no difficulty in so doing. The meetings o f the
federation and the annual conventions o f the Indian National Trade Union Con­
gress too can be attended by the union’s delegates by availing themselves o f their
earned leave.
Industrial adjudication... cannot and should not ignore the claims o f social
justice, a concept based on socio-economic equality, and which endeavours to
resolve conflicting claims o f employers and employees by finding not a one-sided
but a fair and just solution. A demand for special leave has, however, nothing to do
with any disparities or inequalities, social or economic. On the other hand, too
much absenteeism harms both the employers and employees inasmuch as it saps
industrial economy. In our view, the tribunal, on the considerations aforesaid, was
not justified in asking the appellant-company to grant special leave demanded by
the union.

The result is that except for the overtime rate allowed by the tribunal which we
confirm, the rest o f the appeal has to be allowed and the tribunal’s award set aside.
We hold that the award is operative in respect o f the workmen o f the appellant-
company’s factory at Jamshedpur and not the workmen o f its other establishments.
The demand for special leave comprised in demand 5 is disallowed. There will be no
order as to costs.
NOTES
Consider the following recommendations o f the (First) National Commission
on Labour:
It would be desirable to make recognition compulsory under a Central Law in
all undertakings employing 100 or more workers or where the capital invested is
above a stipulated amount. A trade union seeking recognition as a bargaining
agent from an individual employer should have a membership o f at least 30 percent
o f workers in the establishment. The minimum membership should be 25 percent if
recognition is sought for an industry in a local area [From Report o f the National
Commission on Laboiirp. xxiv 1969],
 T r a d e U n io n s , C o l l ec t iv e B a r g a in in g and T ripa rtism 111

TAMILNADUELECTRICITYBOARDACCOUNTSAND
EXECUTIVE STAFF UNION v. TAMIL NADU
ELECTRICITY BOARD
Madras High Court, (1980) 2 LLJ 246

[The Tamil Nadu Electricity Board Accounts Subordinates Union (a union repre­
senting all workmen engaged in clerical, accounting and other work in the Tamil
Nadu Electricity Board) was accorded recognition by the Board under the Code of
Discipline. The union was also accorded various facilities such as rent free accom­
modation provided under the Code. After the recognition the union entered into
various settlements on behalf o f the clerical and accounts employees. The name of
the union was changed into Tamil Nadu Electricity Board Accounts & Executive
Staff Union and the coverage was extended to employees o f the board who fell
within the definition o f “workmen” under the Industrial Employment (Standing
Orders) Act, 1926. The board refused to accord recognition to the new union.
Against this order o f the board the union filed a writ petition for the issuance o f a
writ o f certiorari in the Madras High Court. Excerpts from the judgment o f the court,
delivered by Mohan J. fo llo w :]
For my part, I find it extremely difficult to appreciate the stand as to how the
petitioner could be prevented from changing its name. In this context, it is worth­
while quoting S. 26 o f the Trade Unions A c t :
“(1) the change in the name o f a registered Trade Union shall not affect any
rights or obligations o f the Trade Union or render defective any legal proceedings
by or against the Trade Union, and any legal proceedings which might have been
continued or commenced by or against it by its former name may be continued or
commenced by or against it by its new name.
(2) An amalgamation o f two or more registered Trade Unions shall not preju­
dice any right o f any o f such Trade Unions or any right o f a creditor ofany o f them”.
So, to that part o f the change o f the name, there cannot be any obje'ction
whatever.... By enlarging the coverage so as to include all categories o f employees,
who fall under the definition o f “workmen” under S. 2 (i) o f the Indusfrial Employ­
ment (Standing Orders) Act, 1926, neither in fact nor in law, did it want to enlarge the
coverage relating to representative capacity or bargaining power....
Therefore, the composition o f the union may be changed, both in its name and
the content, since it does not alter or change or enlarge its representative capacity.
Still, the representative capacity will be only in respect o f ministerial staff, excluding
peons, bill collectors and storekeepers.... It is too late in the day to contend that an
administrative order can be passed whimsically. It must conform to certain reason­
112 L a b o u r L aw and L a b o u r R elations

able standards. Tested in that light, I am unable to say as to how the impugned
proceedings o f the board could be sustained where it had completely missed the
quintessence o f the prayer o f the petitioner.
To say that no right o f the petitioner is affected is totally wrong because
pursuant to the recognition, the petitioner had entered into various settlements in
regard to clerical and accounts employees. It has been granted facilities o f rent fi-ee
accommodation, right to negotiate in regard to clerical and accounts staff and other
facilities as provided for in the Code o f Discipline. Whatever may be these rights
and however unsubstantial they may be, in law they give them a right or even a
semblance o f a right that cannot be interfered with, except for reasons which any
reasonable person would accept as correct. That is not so in this case. Therefore, to
say that an administrative order cannot be interfered with is relying upon law which
had become either decayed or dead....
For all these reasons the writ petition will stand allowed and the impugned
order quashed.

NORTH-EASTERN RAILWAY EMPLOYEES’UNION

V. REGISTRAR OF TRADE UNION

Allahabad High Court, (1975) 2 LLJ 396

[Two rival groups from within the same trade union, viz., the North- Eastern Railway
Employees Union, registered under the Trade Unions Act, 1926, sent two different
sets o f office-bearers in the annual returns to the Registrar o f Trade Unions, U.R,
each group claiming to be the duly and validly elected one. The Registrar accepted
one set o f office-bearers elected at Sonepur and they were recognised as represen­
tatives o f the union by the General Manager o f the Railways. The aggrieved group
filed a writ petition to quash the order o f the Registrar o f Trade Unions. Excerpts
from the judgment o f the court, delivered by K. N. Singh J. follow;]
Section 8 o f the Trade Unions Act, 1926 (hereinafter referred to as the Act)
requires the Registrar o f Trade Unions to maintain a register o f trade unions wherein
the name o f trade unions registered under the Act is entered containing the particu­
lars required under the Act and Regulations. One o f the particulars requires the
registration o f the office-bearers o f the union. Section 28 lays down that the union
shall annually send a general statement to the Registrar in the prescribed form
including the details o f receipts and expenditures o f the union and the changes
made, if any, by the trade union in its office bearers. Subsection (3) requires every
registered trade union to submit every alteration made in the rules o f the union to
the Registrar within 15 days o f the making o f the alteration. Subsection (4) confers,
 TRADE U n io n s , C o l l ectiv e B a r g a in in g and T ripartism 113

powers on the Registrar to inspect the account booics, registers and other docu­
ments which may be necessary for the purposes o f examining, the documents re­
quired under subs. (1), (2) and (3) o f S. 28. Section 29 o f the Act confers powers on
the appropriate Government to frame regulations for the purposes o f carrying into
effect the provisions o f the Act. The State Government has framed regulations in
exercise o f that power.
Regulation 17A is the relevant provision which lays down procedure for regis­
tering changes in the office bearers. Regulation 17A requires the submission o f the
list o f newly elected office bearers in form “J” to the Registrar within a week of
change taking place and the Registrar is required to record the changes in the
Register o f Trade Unions maintained under Section 8 o f the Act within .30 days
under intimation to the General Secretary o f the Trade Union, unless he has reason
to believe that the change was not made in the manner provided in the registered
rules o f the trade union. Regulation 17A contemplates that the Registrar may refuse
to register the changes if he has reason to believe that the change was not made
according to the registered rules o f the trade union. The Registrar is required to
satisfy himself before making any change that the changes in the office bearers
were made in accordance to the rules o f the union but he is not required to hold any
elaborate enquiry or to determine the claim o f rival factions. Neither the Act nor the
regulation framed thereunder require the Registrar to !hold any detailed enquiry,
record evidence or to decide the claims o f rival groups o f a trade union. He is
entitled to hold enquiry only to satisfy himself about the change. He is under no
obligation to record evidence. In North-Eastern Railwa)' Mazdoor Union v. Regis­
trar o f Trade Unions, (1969 Lab. I.C. 209) (All.) the nature and scope ofthe Registrar’s
power and enquiry was considered at length. The learned Judge observed: -
“The implied power o f the Registrar to ascertain actual facts from the parties
where there appears to be some conflict between the two versions placed before
him by means o f two forms filled up and filed by two rival groups could not convert
the inquiry held by the Registrar into a quasi-judicial proceeding in which each side
has the right to lead evidence and cross-examine witnesses . . . . Even under regu­
lation 17A, the Registrar could only look at the rules and prima facie evidence and
arrive at a conclusion to believe, record or not to believe and record that the change
is not in accordance with the rules. He can refuse to record any change, even if he
were to act under S. 17A and ask contesting parties to get an adjudication from a
civil Court first”.

The above observation o f the learned Judge would show that the Registrar o f
Trade Unions while exercising his powers under S. 28 (3) o f the Act does not
discharge any quasi-judicial function. No party is entitled to lead evidence or to
114 L a b o u r L aw and L a b o u r R elations

cross-examine witnesses and no elaborate enquiry is required to be held. The Reg­

istrar is free to hold a summary enquiry to satisfy himself for effecting the changes.
Regulation 17A does not enlarge the scope o f enquiry. In this view of the matter the
petitioner’s contention cannot be upheld.
Moreover, on the material on record it is fully established that the petitioners
were given full opportunity to lead evidence in support o f their case....
The Registrar was not holding a quasi-judiciai enquiry. He was discharging an
administrative function, he was not required to examine witnesses or to allow op­
portunity for cross-examination o f witnesses. No doubt even an administrative
enquiry must be held in a fair and impartial manner. In the instant case even if the
Registrar was required to act in a quasi-judicial manner, the parties were given
adequate opportunity but the petitioner No. 2 did not avail the same....
In view o f the above discussion I find no illegality in the order o f the Registrar.
As regards the order o f the General Manager recognising the office bearers that
order was passed as a consequence o f the registration o f the new office bearers.
Once the office bearers were recognised by the Registrar and necessary changes
were made in the register o f unions, the newly elected office bearers were entitled to
function as office bearers o f the Union. In these circumstances, the General Man­
ager acted within his jurisdiction in recognising the registered office bearers. I find
no illegality in that order.
In the result the writpetition fails....

KARNATAKA BANK EMPLOYEES ASSOCIATION v.

COMMISSIONER OF LABOUR
Karnataka High Court, ( 1980) ILLJ 97

[The managements o f certain banks were deducting trade union’s subscription

from the salary o f member employees in accordance with the terms o f agreement.
The Labour Commissioner, however, directed the managements to discontinue the
deduction. The petitioner in a writ petition under article 226 o f the Constitution
challenged the order o f the Labour Commissioner. Excerpts from the judgment of
BopannaJ. follow:]
There is no provision for deduction o f the union subscription from the wages
o f the employees nor there is any prohibition for such deduction because it “does
not find favour with the Government.” But the members and the Bank have entered
into an agreement for the deduction o f the membership fee. Such deduction is for
the betterment o f the employees. It is common knowledge that the workers organise
themselves by forming unions with a view to bargain collectively with their employ­
 TRADE U n io n s , C ollective B a r g a in in g and T r ipa r tism 11 5

ers on various matters touching their service conditions, emoluments, bonus, etc. It
is, therefore, necessary, for these unions to be self-supporting by taking a nominal
subscription from their members only. By their own financial resources the unions
can bargain effectively with their employers by retaining their individuality and
independence for the various rights conferred on them by innumerable labour laws
that are on the statute book. From this point o f view a nominal deduction o f Rs. 2
from the wages o f the members o f the association cannot be characterised as a
deduction against the interest o f the members o f the association. Therefore, the
only point that arises for consideration is whether such an agreement, ...is hit by S.
23 o f the Payment o f Wages Act. S. 23 o f the Payment o f Wages Act reads as
follow s:
“Any contract or agreement, whether made before or after the commencement
o f this Act, whereby an employed person relinquishes any right conferred by this
Act shall be null and void insofar as it purports to deprive him o f such right.” The
interpretation o f the section came up for consideration before the Federal Court as
well as this Court in the cases referred to above by the learned counsel for the
petitioner. \r\F.W. Heilgers and Co. v. Nagesh Chandra Chakravarty..., the Federal
Court while interpreting S. 23 o f the Payment o f Wages Act, observed as follows :
“In our opinion the whole scheme o f the Payment o f Wages Act read along
with the Industrial Disputes Act, shows that there is nothing to prevent such an
agreement being made between an employer and employee, and much less to make
such agreement illegal and prohibited by the Payment o f Wages Act. Section 23,
Payment o f Wages Act, also, in our opinion, does not support the argument o f the
appellant. It only prevents an employee fi-om contracting away his rights which are
given by the Payment o f Wages Act. It does not prevent him from entering into an
agreement advantageous or beneficial to him.”
These observations were made in the context o f objections taken by tjie em­
ployer that their agreement with the workmen for payment o f bonus was hit by, the
provisions o f Ss. 20 and 23 o f the Payment o f Wages Act.
This Court’s decision was rendered in the writ petition filed by the employees
o f the Mysore Sugar Company, challenging the settlement between the union and
the company which enjoined on the workers not to receive from the company 15%
o f the total emoluments during the relevant period o f one year, subject to the
repayment o f that sum on a reconsideration o f the matter by the company at the
appropriate stage. It transpires such a term was introduced in the settlement be­
cause o f certain adverse trade and economic conditions that prevailed affecting the
finances o f the company during that particular year. Somnath lyre, JL speaking for
the Court held th at:
116 L a b o u r L aw and L a b o u r R e latio ns

“However that may be, we lean to the view o f the impugned settlement is not
within the prohibition o f S. 23 o f the Payment of Wages Act. We take the view that
the settlement makes no deduction from the wages claimable from the employed
person. As we have already observed, the consent under the impugned settlement
by the Association was to abstain from receiving from the company 15% o f the
total emoluments during the period o f one year subject to the payment o f that sum
o f money on a reconsideration o f the matter by the company at the appropriate
Stage.”...
In the light o f the decisions o f the Federal Court as well as this Court adverted
to above the petitioner is bound to succeed. Accordingly, the rule issued is made
absolute and the petition is allowed.

PHILIPS WORKERS’ UNION v. REGISTRAR, TRADE UNIONS

Calcutta High Court, 1989 Lab. I.C. 985

[The Philips Workers’ Union which was registered under the Trade Unions Act,
1926 had two branches, namely, (i) factory unit and (ii) commercial unit. For trans­
acting the business there were two executive committees one each for the factory
unit and the commercial unit. The election o f the executive committee o f the factory
unit was held in 1986 for the year 1986-1987 but appellant No. 2, the President o f the
factory union and his associates did not put up any candidate against Shri Sunil
Ghosh and Shri Pradip Mukherjee who filed nominations for the posts o f Secretary
and Treasurer, respectively. But before the polling date they and some o f their
followers withdrew their candidature. All other candidates were elected uncon­
tested but due to the aforesaid withdrawal the posts o f Secretary, Treasurer and
some members remained vacant even after the election. The newly elected execu­
tive committee after obtaining legal opinion filled up by co-option all the vacant
posts at the general meeting o f members o f the factory unit. Thereafter the execu­
tive committee o f the factory unit submitted a charter o f demand to the management
o f Philips India Ltd. for increase of pay and allowances to workmen. This angered
the faction led by Shri Ghosh. Ultimately the executive committee succeeded in
persuading the management to accept most o f its demand and this inftiriated the
opposite camp. On or about 6"’ March, 1987 the appellant No. 2 received a memo
from the Deputy Registrar o f Trade Unions, West Bengal (respondent No. 2) re­
garding affiliation o f the rules and constitution o f Philips Workers’ Union. It was
also stated therein that they violated clause 9 o f the Rules and the constitution o f
the Union, which was denied by appellant No. 2. By another memo the Deputy
Registrar issued a show cause notice stating again about the violation o f clause 9
in as much as it did not permit co-option o f executive to fill up vacancies o f Presi­
 T rade U n io n s , C ollective B a r g a in in g and T ripartism 117

dent, Vice President, Secretary and Treasurer. On receipt o f memo the President
submitted tiie reply and requested him to allow a fortnight tihie. But the Registrar
without taking any action on his request informs the Senior Personnel Manager of
the Pieco Electronics & Electrical Ltd. that the registration o f Philips Workers’
Union is cancelled. Aggrieved by this order the petitioner filed a writ petition in the
High Court. The High Court dismissed the petition. Thereafter the petitioner filed a
writ appeal and stay application before the Division Bench o f the Calcutta High
Court. Excerpts from the judgment o f the court delivered by Yusuf J. follow:]
We have considered the facts and circumstance o f the case.... It appears to us
from the perusal o f the records produced by the learned Advocate for the State that
the Deputy Registrar o f Trade Unions, West Bengal, from the very beginning moved
against the Philips Workers’ Union with a preconceived notion and with mala fide
motive aided and abetted by the Registrar o f Trade Unions, West Bengal....
We further find that the Registrar in his note dated June, 1987 again refers as
“ the President, Philips Workers’ Union” whereas both the impugned memos were
addressed to the President, Philips Workers’ Union (Factory Uriit), and not to the
President o f the Philips Workers’ Union as such. It is crystal clear that the Philips
Workers’ Union (Regd. No. 3086) is the Union registered und?r the Trade Unions
Act and not the Factory Unit or the Commercial Unit which are the two wings o f the
main body having no independent status o f their own. One fails to understand how
the respondents Nos. 1 and 2 can take steps against the parent body i.e. the Philips
Workers’ Union which is not served with any show cause,Tiotice and how the
registration o f this parent body can be cancelled. This shows the way how the
respondent Nos. 1 and 2 moved against this particular Union at the instigation from
certain quarters. Even for argument sake if it is accepted that there were some
irregularities in the Factory Unit o f the Philips Workers’ Union, on that count the
parent body’s registration should not have been cancelled under any circumstances.
We agree with the submission o f Mr. Mukherjee that Cl. 9 o f the Constitution
of the Philips Workers’ Union which deals with Executive Committee o f th^Units
does not specify that the casually vacant seats should be filled in by election.' The
relevant provision in Cl. 9 runs as follows:-
“If any seat o f executive members is found to be lying vacant in any Unit
after the election the new Unit o f the Committee may, however, fill up the vacant
seat by selection according to suitability.”

As such the co-option in the nine vacant posts o f the Executive Members and
the posts o f the Secretary and the Treasurer was in accordance with Cl. 9 o f the said
Constitution.
118 L a b o u r L aw and L a bo u r R elations

The action taken by the respondents Nos.l and 2 against the appellant N o.l
the Philips Workers’ Union, under Ss. 6 and 10 of the Trade Unions Act is patently
wrong, without jurisdiction and illegal. The provisions o f sub-secs, (a) to (j) o f S.6
o f the Act are required to be complied with by a Trade Union at the time o f the
registration under the said Act. Cls. (a) to (j) of S.6 provide the broad principles,
which must be incorporated compulsorily in the Constitution and rules o f a Trade
Union. Once a Trade Union is registered under the Act its Certificate o f Registra­
tion cannot be cancelled, save and except under the provisions o f S. 10 o f the
Act....
But we find that in this particular case none of the conditions contained in S. 10
(b) has been violated by the Philips Workers’ Union bearing Registration No.3086.
If at all there was any dispute such a dispute arose only in the factory unit.
In our opinion the respondents Nos. 1 and 2 wholly proceeded with a wrong
approach in the matter and made the parent body i.e. the Philips Workers’ Union as
the target o f their wrath. All the impugned Memos were addressed to the President
o f the Factory Unit o f the Philips Workers’ Union and not to the President o f the
Philips Workers’ Union. If there was any violation of Constitution or Rules on the
part o f the Philips Workers’ Union then the President o f the Union ought to have
been served with the notices. We fail to understand in such circumstances how the
Philips Workers’ Union itself can be penalized. A perusal o f the Constitution o f the
Philips’ Workers Union (Regd. No.3086) reveals the fact that the Union is a combi­
nation of workers employed in Philips India Ltd....
We find that there is no bar in C1.9 to fill in the vacancy in any unit by co­
option. If any seat o f executive committee member is found to be lying vacant after
the election, the new committee to the unit may, however, fill up the vacancy by
selection according to suitability. There is a proviso which says that the posts o f
President, Vice President, Secretary and Treasurer shall be elected by all the eligible
members o f the respective units through secret ballot. We do not find any bar in the
Constitution that if the general election o f the Executive Committee o f any unit
takes place and some seats remained vacant in the Executive Committee because of
any reason then the same cannot be filled in by co-option. Secret ballot for the
office bearers as mentioned in CI.9 obviously refers to the procedure to be adopted
at the election of the Executive Committee of the Unit and not to fill in any casual
vacancy which might occur after such election is held. There is no provision in the
Constitution which indicates even faintly that once the general election o f any unit
is held and the office bearers are elected but subsequently if there is any vacancy
in the posts o f President, Vice President, Secretary and Treasurer then also secret
ballot shall be a must. In the absence o f any such provision in the Constitution o f
 T rade U n io n s , C o l l ec t iv e B a r g a in in g a n d T ripa rtism 119

the Philips Workers’ Union we hold that the co-option was strictly in accordance to
Constitution and there was no illegality in it.

The plea o f the State that if the appellants were aggrieved with the notices and
the order o f the Respondents N os.l and 2 they ought to have first preferred an
appeal as provided under S. 11 o f the Trade Unions Act. This argument has no leg
to stand on. The Supreme Court in the case of Ram and Shyam Co. v. State o f
Haryana, AIR 1985 SC 1147 has held that where any order cohiplained against is
alleged to be illegal or invalid as being contrary to law a petition at the instance o f
person adversely affected by it would lie to the High Court under Art. 226 o f the
Constitution and it does not oust the jurisdiction o f the High Court, and such a
petition cannot be rejected .... The instant case is much more stronger than the case
under reference.... The point raised is decided against the State-Respondents.

We further hold that the respondents Nos. 1 and 2 traversed their jurisdiction in
issuing notices by invoking the provision o f S .10 (b) o f the Trade Unions Act and
by cancelling the registration o f the Philips Workers’ Union (Regd.No.3086). It
further appears strange that the respondent No.2, who issufed the cancellation
order passed by the respondent No. 1 even, did not care to send the impugned order
to the President o f the Philips Workers’ Union or to the President o f its Factory
Unit. Only a communication was made to the Senior Persbnnel Manager o f the
Pieco Electronics and Electricals Ltd. (formerly known as Philips India Ltd.). One
copy o f the letter with a filled up Postal Acknowledgment Due Form addressed to ,
the President o f the Philips Workers’ Union still lies unissued in the record. It does
not appear from the record that the Registrar applied his mind or noted reasons for
the cancellation o f registration o f the Union. He did make up his mind on 13‘^
February, 1987 to cancel the registration and he did issue the order dated 4**’ June,
1987 without considering the show cause reply dated 2"‘* June, 1987 which was
duly received by him on the very same date. This is not only a case o f non-applica-
tion o f mind but a reckless, motivated and vindictive act on the part o f the Respon­
dent N o .l. We accordingly set aside and quash the Memo No.215/TUR dated 2 \
March, 1987 and the Memo No.259/TUR dated 17*'^ March, 1987 as well as the Order
N 0.549/TUR dated 4'*’ June, 1987 on the basis o f which the registration o f Philips
Workers’ Union (Regd.'No.3086) was cancelled by the Registrar o f Trade Unions,
West Bengal.

The appeal succeeds and the application is disposed o ff accordingly. The

order under appeal is set aside and the writ application is allowed.
120 L a b o u r L aw and L a b o u r R elations

In view o f the judgment and order passed today, the Philips Workers’ Union
will be entitled to exercise all the legal rights including the operation o f Bank
accounts. AH parties shall act on the signed copy o f the minutes o f the operative
part o f the order and judgment on usual undertaking.

RATAN KUMAR DEY v. UNION OF INDIA

Gauhati High Court, 1991 Lab. I.C.531

[The petitioners were employees o f the Hindustan Paper Corporation Ltd. They
along with other workers o f the Corporation formed the union and got it registered
under the Trade Unions Act, 1926. The office-bearers o f the Union held office for a
period o f one year. The respondent Nos. 3 and 4 were President and Secretary o f the
Executive Committee o f the union for the previous year 1989. According to the
petitioners the respondent ceased to be office-bearers after a section o f members o f
the union had opted for merger in a meeting on 14-12-89 with Bhartiya Pulp Paper
and Straw Board Mazdoor Sangh and the Bhartiya Mazdoor Sangh and that at a
requisitioned meeting held on 19-2-90 the petitioners were selected office-bearers.
The management o f the Corporation was accordingly informed o f the formation o f
the Executive Committee by letter dated 23-2-90. After the formation o f the new
committee, the respondent No. 4 had tried to operate the Savings Bank account o f
the Union in the Central Bank o f India, Panchgram Branch. Thereupon, the petition­
ers and four members o f the union selected on 19-2-90 informed the Branch Man­
ager, Central Bank o f India, Panchgram branch not to allow operation o f the bank
account. The respondent Nos. 3 and 4 had also not handed over charge to the
petitioners. Thereupon the petitioner filed a writ petition under article 226 o f the
Constitution o f India in the Gauhati High Court, praying for direction to the respon­
dents to hand over charge o f the union to petitioners Nos. 1 and 4 and to respon­
dents Nos. 3 and 4 not to operate the bank account o f the Union. The respondents
have resisted the petition on the ground that the petitioners have no authority to
represent the Union as the petitioners were not President and General Secretary o f
the Union. During the pendency o f this petition election was held on 30-4-90 and
the respondents were elected office- bearers o f the union. It was further stated that
the petition under article 226 o f the Constitution o f India was not maintainable in
respect o f dispute between office bearers o f the Union and further that in the
disputed facts relating to the elections o f office bearers o f the union and the like,
the remedy was by Civil suit. Excerpts from the judgment o f the division bench of
Gauhati High Court delivered by Srivastava J. follow:]
...[I]n the dispute between the rival office bearers o f the union, the Registrar o f
Trade Union has no authority or power under Section 28 o f the Trade Unions Act,
 TRADE U n io n s , C o l l ec t iv e B a r g a in in g and T ripa rtism 121

1926 to decide the dispute, even though he has power to make his enquiries and
come to his own conclusion in the matter for the purposes o f maintenance o f record
o f office bearers o f the union.
We therefore think that the dispute being related to rival claims o f office bear­
ers o f the union, a private dispute, the writ jurisdiction o f the Court under Article
226 o f the Constitution o f India is not available and cannot be invoked.
It may also be noted that contentions between the parties raise several dis­
puted questions o f fact, which cannot, in our opinion be properly determined in this
petition.... The proper remedy in such dispute which can be decided only on evi­
dence should be civil suit where the parties may adduce their evidence, op consid­
eration o f which the Court may decide the dispute. We hold accordingly.

For the aforesaid reasons, this petition fails and is dismissed. We, however,
make no order as to costs. Petition dismissed.

FOOD CORPORATION OF INDIA STAFF UNION v. FOOD

CORPORATION OF INDIA
1995 Supp(l) s e e 678

[The Food Corporation o f India (FCI) and the union representing the workmen
agreed to follow the “secret ballot method for determining the representative char­
acter o f the trade union. They approached the Supreme Court in an appeal and writ
petition to lay down as to how the method o f secret ballot should be tailored to
yield the correct result. Keeping in view the importance o f the matter the court
issued notices to all the major all India trade uriion organizations on this aspect.
Pursuant to this notice some trade union organizations appeared and were heard by
the court. Excerpts from the order o f the three judge bench o f the Supreme Court
follow;]
Shri Khera appearing for one o f the trade unions has brought to our notice'
instruction No. 25 of 1980 dated 18-12-1980 issued by the office o f the Chief Labour
Commissioner, Ministry o f Labour, Government of India. This communication styled
as ‘Memorandum’ has stated that on receipt o f request either from the management
or union for recognition o f the union for the purpose at hand, its eligibility for
recognition is fu-st required to be examined, as stated in para 3 in which mention has
been made about collection o f some preliminary data. After this has been done, the
exercise o f determination o f the strength o f all eligible unions is undertaken. This is
decided through secret ballot. The Memorandum has laid down a detailed proce­
dure in this regard. We have also on record a scheme which had been prepared by
the appellant for assessment o f representative character o f the trade unions through
122 L a b o u r Law and L a b o u r R e lations

secret ballot system. We have perused the aforesaid documents. We direct that the
following norms and procedure shall be followed for assessing the representative
character o f the trade unions by the secret ballot system”:
(i) As agreed to by the parties the relative strength o f all the eligible unions
by way o f secret ballot be determined under the overall supervision o f the
Chief Labour Commissioner (Central) (CLC).
(ii) The CLC will notify the Returning Officer who shall conduct the election
with the assistance o f the FCL The Returning Officer shall be an officer of
the Government o f India, Ministry ofLabour.
(iii) The CLC shall fix the month o f election while the actual date/ dates of
election shall be fixed by the Returning Officer.
(iv) The Returning Officer shall require the FCl to ftimish sufficient number o f
copies o f the lists o f all the employees/ workers (Categories III and IV)
governed by the FCl (Staff) Regulations, 1971 borne on the rolls o f the FCl
as on the date indicated by the CLC. The list shall be prepared in the pro
forma prescribed by the CLC. The said list shall constitute the voters list.
(v) The PCI shall display the voters list on the notice board and other con­
spicuous places and shall also supply copies thereof to each o f the unions
for raising objections, if any. The unions will file the objection to the
Returning Officer within the stipulated period and the decision of the
Returning Officer shall be final.
(vi) The FCl shall make necessary arrangement to;
(a) give wide publicity to the date/ dates o f election by informing the
unions and by affixing notices on the notice boards and also at other
conspicuous places for the information o f all the workers;
(b) print requisite number o f ballot papers in the proforma prescribed by
the CLC incorporating therein the names o f all the participating unions
in an alphabetical order after ascertaining different symbols o f re­
spective unions;
(c) the ballot papers would be prepared in the proforma prescribed by the
CLC in Hindi/ English and the regional language concerned;
(d) set up requisite number o f polling stations and booths near the pre­
mises where the workers normally work; and
(e) provide ballot boxes with requisite stationery, boards, sealing wax
etc.
 T rade U n io n s , C ollective B a r g a in in g and T ripartism 123

(vii) The Returning Officer shall nominate Presiding Officer for each o f the
polling station/ booth with requisite number o f polling assistants to con­
duct the election in an impartial manner. The Presiding Officers and the
polling assistants may be selected by the Returning Officer from amongst
the officers o f the FCl,
(viii) The election schedule indicating the dates for filing o f nominations, scru­
tiny o f nomination papers, withdrawal o f nomination, polling, counting o f
votes and the declaration o f results shall be prepared and notified by the
Returning Officer in consultation with the FCI. The election schedule shall
be notified by the Returning Officer well in advance and at least one
month’s time shall be allowed to the contesting unions for canvassing
before the date o f filing the nominations.
(ix) To be eligible for participating in the election, the unions must have valid
registration under the Trade Unions Act, 1926 for one year with an exist­
ing valid registration on the first day of filing of nomination.
(x) The Presiding Officer shall allow only one representative to be present at
each polling station/ booth as observer
(xf) At the time o f polling, the polling assistant will first score out the name of
the employee/ workman who comes for voting, from the master copy of
the voters list and advice him thereafter to procure.the secret ballot paper
from the Presiding Officer
(xii) The Presiding Officer will hand over the ballot paper to the workman/
employee concerned after affixing his signatures thereon. The signatures
o f the workman / employee casting the vote shall also be obtained on the
counterfoil o f the ballot paper He will ensure that the ballot paper is put
inside the box in his presence after the voter is allowed to mark on the
symbol o f the candidate with the inked rubber stamp in camera. No em­
ployee/ workman shall be allowed to cast his vote unless he produces his
valid identity card before the Presiding Officer concerned. In the event of
non-production o f identity card due to any reason, the voter may bring'in
an authorization letter from his controlling officer certifying that the voter
is the bona fide employee o f the FCI.
(xiiO After the close o f the polling, the Presiding Officer shall furnish detailed
ballot paper account in the proforma prescribed by the CLC indicating
total ballot papers received, ballot papers used, unused ballot papers
available etc. to the Returning Officer
(xiv) After the close o f the polling, the ballot boxes will be opened and counted
by the Returning Officer or his representative in the presence o f the repre-
124 L a b o u r L aw and L a b o u r R elations

sentatives o f each o f the unions. All votes which are mariced more than
once, spoiled, cancelled or damaged etc. will not be taken into account as
valid but a separate account will be kept thereof.
(xv) The contesting unions through their representative present at the count­
ing place may be allowed to file applications for recounting o f votes to the
Returning officer. The request would be considered by the Returning
Officer and in a given case if he is satisfied that there is reason to do so he
may permit recounting. However, no application for recounting shall be
enterained after the results o f the votes are declared.
(xvi) The result o f voting shall be compiled on the basis o f valid votes polled in
favour o f each union in the proforma prescribed by the CLC and signa­
tures obtained thereon from the representatives o f all the unions con­
cerned as a proof o f counting having been done in their presence.
(xvii) After declaring the results on the basis o f the votes polled in favour o f
each union by the Returning Officer, he will sead a report o f his findings to
the CLC.
(xviii) The union/ unions obtaining the highest number o f votes in the process
o f election shall be given recognition by the FCl for a period o f five years
from the date o f the conferment o f the recognition.
(xix) It would be open to the contesting unions to object to the result o f the
election or any illegality or material irregularity which might have been
committed during the election. Before the Returning Officer such objec­
tion can only be raised after the election is over. The objection shall be
heard by the CLC and disposed o f within 30 days o f the filing o f the same.
The decision o f the CLC shall be final subject to challenge before a compe­
tent court, if permitted under law.
It would be open to the CLC to deal with any situation not covered by the
procedure detailed above. He may do so in consultation with the Returning Officer
and the FCI.
We direct the CLC and the FCI to hold election in accordance with the proce­
dure prescribed by this order. This maybe done before 30-4-1995.

BOROSIL GLASS WORKS LTD. EMPLOYEES’ UNION v. D.D. BAMBODE

(2001)1 s e e 350

[Borosil Glass Works Ltd. Employees’ Union (appellant) was a trade union regis­
tered under the Trade Unions Act, 1926 and recognised by the management. 4th
 T r a d e U n io n s , C o l lective B a r g a in in g and T ripa rtism 125

respondent and certain other persons made a joint application for membership o f
the appellant Union. The union asked them to make separate application in accor­
dance with the procedure o f the appellant union. Thereupon the 4'*’ respondent
applied for a consent certificate under Section 28(1-A) o f the Trade Unions Act,
1926 but the application was rejected by the Registrar o f Trade Unions on the
ground that he was not a member o f the appellant Union for six months prior to the
date o f the application. Aggrieved, by this order they filed a writ petition in the
Bombay High Court seeking direction to the Registrar to issue a consent certificate.
The court held that even a person who has applied to become a member can apply
under section 28(1-A) o f the Trade Unions Act. Against this order the Union filed
an appeal before the Supreme Court, Excerpts from, the judgment o f the court
delivered by Variava J. follow;]
For a consideration o f this question it will be appropriate to set out Section
28(1-A) o f the Trade Unions Act. It reads as follow;
“28 (1-A) Power o f Industrial Court to decide certain disputes - (1) Where
there is a dispute as respects whether or not any person is an office- bearer or a
member o f a registered trade union (including any dispute relating to wrongful
expulsion o f any such office-bearer or member), or where there is any dispute
relating to the property (including the account books) o f any registered trade union,
any member o f such registered trade union for a period o f not less'than six months
may, with the consent o f the Registrar, and in such manner as may be prescribed,
refer the dispute to the Industrial Court constituted under the Bombay Industrial
Relations Act, 1946, for decision.
(2) The Industrial Court shall, after hearing the parties to the dispute, decide
the dispute; and may require an office-bearer or member o f the registered trade
union to be appointed whether by election or otherwise under the supervision of
such person as the Industrial Court may appoint in this behalf or removed, in
accordance with the rules o f the trade union:
Provided that the Industrial Court may, pending the decision o f the dispute,
make an interim order specifying or appointing any person or appointing a Commit­
tee o f Administration for any purpose under the Act including the purpose of
taking possession or control o f the property in dispute and managing it for the
purpose o f the union pending the decision.
(3) The decision o f the Industrial Court shall be final and binding on the parties
and shall not be called in question in any civil court.
(4) No civil court shall entertain any suit or other proceedings in relation to the
dispute referred to the Industrial Court as aforesaid, and if any suit or proceeding is
pending in any such court, the civil court shall, on receipt o f an intimation from the
12 6 L abour L aw and L a b o u r R elations

Industrial Court that it is seized o f the question, cease to exercise jurisdiction in

respect thereof.
(5) Save as aforesaid, the Industrial Court may, in deciding disputes under this
section, exercise the same powers and follow the same procedure as it exercises or
follows for the purpose o f deciding industrial disputes under the Bombay Indus­
trial Relations Act, 1946.”
The Statement o f Objects and Reasons for incorporating Section 28(1-A) is
also relevant. It reads as follows:
“The Indian Trade Unions Act, 1926, provides for the registration o f trade
unions, and in certain respects defines the law relating to registered trade unions.
The Act, however, does not contain any provision for deciding internal disputes in
a registered trade union. These disputes, which are at present decided by civil
courts, take a long time to decide with the result, that pending the decision o f the
dispute, the work o f the registered trade union, which cannot function, is paraly­
sed. To tide over this difficulty, it is proposed to give power to members o f trade
union with the consent o f the Registrar o f Trade Unions to refer such disputes to
the Industrial Court constituted under the Bombay Industrial Relations Act, 1946,
and to bar the jurisdiction o f civil courts from entertaining such disputes. It is also
proposed to empower the Industrial Court to pass interim orders, and its decisions
are to be made final and binding on parties.”
In our view, on a plain reading o f Section 28(1-A), the interpretation given by
the High Court cannot be sustained. Section 28(1-A) has been incorporated to
ensure that internal disputes in a trade union get decided. The section specifically
provides that it can be only invoked by a person who has been a member o f such
registered trade union for a period o f not less than 6 months. The words “where
there is a dispute as respects whether or not any person is an office-bearer or
member o f a registered trade union” have to be read along with the words “any
member o f such registered union for a period o f not less than six months”. A person
whose application for membership has not been considered or allowed would not
have been a member for six months. It is a cardinal rule o f interpretation that if two
interpretations are possible, one o f each lead to a harmonious reading o f the entire
provision and another which renders a portion nugatory, then the former interpre­
tation has to be accepted. The interpretation given by the High Court leads to
requirement o f a person being a member for six months being rendered nugatory.
However if it is held that the dispute “as to whether a person is a member or not” is
necessarily a dispute in respect o f a person who was already a member for a period
o f not less than six months, but whose membership is being disputed, then no
portion o f the section gets rendered nugatory. Thus it will have to be held that
 T r a d e U n io n s , C ollective B a r g a in in g and T ripartism 127

dispute between persons who are not members and the union would not be cov­
ered by Section 28(1-A). Further a dispute between a person who is not yet a
member and a union would not be an internal dispute o f the union.
Under Section 28(1-A) the jurisdiction o f the civil court is barred only in re­
spect of matters which have been referred to an Industrial Court under Section 28(1-
A). If a dispute does not fall under Section 28(1-A) then that dispute can always be
taken to a civil court. As a dispute whether a person should or should not be
admitted as a member is not a dispute falling within Section 28( 1-A), it would always
be open to such persons to approach a civil court for resolution o f their dispute.
Needless to say that if the law permits they may also raise an industrial dispute
before the Industrial Court in that behalf
In our view, therefore, the judgment o f the High Court cannot be sustained
and is set aside. Accordingly the appeal is allowed. There will be no order as to
costs.

GOVERNMENT TOOL ROOM AND TRAINING CENTRE’S SUPERVISORY&

OFFICERS ’ASSOCIATION V. ASSISTANT LABOUR COMMISSIONER
Supreme Court, 2002 Lab. 1. C. 1034

[The officer and the supervisory staff working in the Government Tool Room and
Training Centre (GTTC) resolved to form a trade union in the name and style o f the
“Government Tool Room and Training Centre”. In terms o f the said resolution^th&y.
submitted an application for registration. The respondent authorities reftised to regis­
ter the 1 petitioner as the trade union on the ground that the applicants are not the
workmen and besides the applicants are supervisory officers and managers. There­
upon they filed a writ petition before the Karnataka High Court. The question arose
whether the non-workmen have a right to form a trade union under the Trade Unions
Act, 1926. Excerpts from the judgment ofthe court delivered by GurOrajanJ follow:]
The Trade Unions Act o f 1926 is a pre-Constitutional law. The object o f the
Trade Unions Act is to provide for the registration o f a Trade Union and in certain
respects to define the law relating to the Trade Union. Sec. 2 defines various terms
including ‘Trade Dispute’ and ‘Trade Union’. Chapter 11 provides for the registra­
tion o f the trade union. Section 5 provides for an application being made for regis­
tration to the Registrar. Sec. 6 provides for provisions to be contained in the rules of
trade union. Section 7 provides for power to call for further particulars in the matter.
Registration is provided u/s 8 o f the Act. To understand the dispute between the
parties, it is relevant to note the two definitions in section 2(g) and 2(h). ...
[The Court then reproduced the definitions given in section 2 (g) and 2 (h ).]....
12 8 L abo u r L aw and L a b o u r R e lations

In the light o f these two definitions it is clear to me that the word ‘workmen’
under the Trade Unions Act includes all persons employed in a trade or industry. It
is not a restricted definition as in any other enactment o f Labour Laws. When the
Act itself provided for wider definition and for a wider meaning o f that definition,
the courts cannot narrow it by its decision. That would be against the very object
o f the Trade Unions Act itself. It is well settled principle o f law that two conditions
are necessary for interpreting an earlier enactment in the light o f the provisions o f
later Act. They are:
(1) The two Acts o f the Legislature must be in pari materia, that is to say that
they form a system or code o f legislature; and
(2) The provisions in the earlier Act is ambiguous.
In the case on hand, there is no ambiguity in the light o f the definitions o f the
Trade Unions Act. It is relevant to note the judgment o f the Supreme Court in case
o f Tirumala Tirupati Devasthanam v. Commissioner o f Labour, reported in 1995
Supp (3) s e e 653. The Supreme Court was considering in the said case with regard
to registration o f a trade union. The Supreme Court in para 4 ruled as under:
I

“It would be apparent from this definition that any group o f employees which
comes together primarily for the purpose o f regulating the relations between them
and their employer or between them and the other workmen may be registered as a
Trade Union under the Act. It cannot be disputed that the relationship between the
appellant and the workmen in the question is that o f employer and employee. The
registration o f the association o f the said workmen as a Trade Union under the Act
has nothing to do with whether the said wings o f the appellant are an ‘industry’ or
not. We are, therefore, o f the view that the High Court went into the said issue,
although the same has not arisen before it. Since the findings recorded by^the High
Court on the said issue, are not germane to the question that falls for consijderation
before us, we express no opinion on the same and leave the question open.”
The Supreme Court, in the said judgment has made it clear that any group o f
employees may be registered as a Trade Union under the Act for the purpose o f
regulating the relations between them and their employer and between themselves.
It is pertinent to refer to a leading case o f this court reported in 1974 Lab IC
695 (the Registrar o f Trade Unions, Mysore v. M Mariswamy). That was a case
in which the employees o f the Provident Fund Organisation got themselves
registered under the Trade Unions Act. The said registration was subsequently
withdrawn by the department. The said withdrawal was the subject matter o f
litigation. The said litigation ultimately reached this court. This court in Para 7
rule as under:
 T r a d e U n io n s , C o l lective B a r g a in in g and T r ipa rtism 12 9

“It is clear from the definition o f tiie expression ‘Trade Union’ that it could be
a combination either o f workmen or o f employers or o f both, provided it is formed
primarily for one o f the purposes mentioned in clause (h) o f section 2 o f the Act. It
is, therefore, possible to have a Trade Union consisting only o f employers. The
emphasis in Sec 2(h) is on the purpose for which the Union is formed and not so
much on the persons who constitute the union.
In the light o f the judgment o f the Supreme Court and in the light o f the
judgment o f this court read with definitions in the Trade Unions Act, it is clear to me
that the emphasis is on the purpose for which the union is formed and not so much
on the persons who constitute the Union. In the case on hand, the registration is
not granted on the person who constitutes the Union (non-workmen). Therefore, in
the light o f a clear definition and in the light o f the case laws, the endorsement has
no legs to stand in law. The endorsement, in these circumstances, is set aside. A
direction is issued to the respondents to register the Petitioner as a Trade Union, if
the Petitioner otherwise fulfils all other legal requirements in terms o f the Trade
Unions Act. Petition is allowed in the above manner.

BOKAJ AN CEMENT CORPN. EMPLOYEES’ UNION v. CEMENT

CORPN. OF INDIA LTD.
(2004) 1 s e e 142

[The question for determination that arose in this case was vyhether an employee as
a result o f cessation o f employment would lose his right to continue as a member o f
the trade union? The single Judge o f the High Court answered the question in
negative. On appeal the Division Bench reversed the decision o f the single judge o f
the High Court and held that the right to continue as a member o f the trade union
continues so long as an employee is actually employed. Aggrieved by this order
the Bokajan Cement Corporation Employees’ Union filed an appeal before the Su­
preme Court. Excerpts from the judgment o f the court delivered by Sabhanval J.
follow:]
There is no specific provision in the Act which provides for automatic cessa­
tion o f membership o f the trade union o f an employee on cessation o f his employ­
ment. There is also no specific clause in the constitution o f the appellant Union
which provides for such automatic cessation.
[The court then referred to provisions o f sections [2(e), 4, 5 and 6] ... For
present purposes, clause (e) is relevant. Section 6(e) reads as urider:]
“(e) the admission o f ordinary members who shall be persons actually engaged
or employed in an industry with which the trade union is connected, and also the
130 L a b o u r L aw and L a b o u r R e latio ns

admission o f tiie number o f honorary or temporary members as office-bearers re­

quired under Section 22 to form the executive o f the trade union;”
Section 22, inter alia, provides that not less than one-half o f the total number
o f the office- bearers o f every registered trade union in an unrecognized sector shall
be persons actually engaged or employed in an industry with which the trade union
is connected.
It is thus clear that the rules o f the trade union have to provide for the admis­
sion o f ordinary members who shall be persons actually engaged or employed in an
industry with which the trade union is connected, and also the admission o f the
number o f honorary or temporary members as office- bearers required under Sec­
tion 22 to form the executive o f the trade union. The constitution o f the trade union
has, inter alia, to comply with Section 6(e) so as to seek registration under the Act.
Mr. Reddy, the learned counsel for the respondent contends that the words
“actually engaged or employed” would become redundant if an employee can
continue as a member o f a trade union even after cessation o f employment.
In order to appreciate the contention o f Mr. Reddy, it is also necessary to
examine the relevant provisions o f the constitution o f the appellant trade union.
Clause 5 o f the constitution o f the trade union reads as under:
“Membership
Any worker employed by Cement Corporation o f India Ltd. directly or indi­
rectly, throughout shall be eligible for the membership o f the Union provided he/
she accepts the constitution, bye-Iaws and discipline o f the union and pays the
stipulated admission fee o f Rs 1.00 along with stipulated subscription.”
Clause 9 o f the constitution, which provides for the cessation o f membership,
reads as under:
“Obligations
(i) A member, who fails to pay three months’ subscription continuously,
shall cease to be a member o f the Union.
00 The Union shall remove from the membership register the names o f those
who have died/ withdrawn from the Union and ceased to be members of
the Union under any provisions o f the Constitution.
(iii) A person who ceases to be a member o f the Union shall forthwith be
disqualified from exercising the right o f a member and shall have no claim
on fiinds and benefits o f the Union.
(iv) Any member losing validity o f his/her membership as per the provision
vide sub-section (ii) o f this section, shall be readmitted on payment of
 T rade U n io n s , C ollective B a r g a in in g and T ripa rtism 131

Rs. 2 (two) only as readmission fee plus the usual subscription for the
month in which he is readmitted subject to the approval o f the Executive
Committee o f the Ut\ion.”
The constitution o f a trade union is not required to be construed as a statute.
It deserves to be construed broadly and liberally. The Act and the constitution o f
the trade union, unless clearly stipulate otherwise, deserve ta b e interpreted so as
to advance the interest o f the trade union and its members. The membership o f a
trade union is a valuable right, which can be taken away only within the clear
parameters o f the Act and the constitution o f the trade union.

Clause 5 is also not a provision, which provides for the circumstances under
which a member would lose his membership. It provides eligibility conditions for
becoming a member o f the Union. Regarding Section 6(e), its only effect is that the
rules o f a trade union have, inter alia, to provide for the admission o f those who are
actually engaged or employed in the industry as ordinary members so as to entitle
a trade union to seek registration under the Act. Section 6(e) does not provide that
on cessation o f employment, an employee would cease to be a member. On the
aspect o f cessation o f membership o f the trade union, the trade union can make a
provision in its constitution. It is one thing to say that the constitution o f a trade
union shall provide that those actually engaged or employed would be entitled to
be admitted as members o f the trade union and it is altogether a different thing to
say that they would cease to be members once they are not actually engaged or
employed. The latter is not what Section 6(e) contemplates. Likewise, clause 5 o f
the constitution o f the trade union provides for all workers employed by cement
corporation oflndia, directly or indirectly, throughout to be eligible for the member­
ship o f the trade union on acceptance o f the other part o f the said clause. The
expression “throughout” in clause 5 only shows that all through the said eligibility
condition will continue. Again, clause 5 is not a provision for cessation but is a
provision for eligibility to become a member. As already stated, these clauses" are
not required to be construed as a statute. The apprehension o f Mr. Reddy that non^
acceptance o f his contention would result in a situation o f “once a member- always
a member”, is not o f any significance since that depends upon the constitution o f
a trade union. If a trade union accepts that once a member would always continue
to be a member, there is nothing in the Act, which militates against it. A trade union
may provide under which circumstances a member would lose the membership.
Apart fi-pm clause 9 there is no other clause which provides for cessation o f the
membership o f the trade union...
132 L a b o u r L aw and L a b o u r R elations

There is no provision in tlie Act or tlie constitution o f the trade union provid­
ing for automatic cessation o f membership on cessation of employment.
In view o f the provisions in the constitution o f the trade union and in absence
of any provision providing for cessation of membership as a result o f cessation of
employment, it cannot be held that an employee would cease to be a member of the
trade union on termination o f his employment.

For the aforesaid reasons, setting aside the impugned judgment, we restore the
judgment o f the learned Single Judge o f the High Court and allow the appeal.

TATA WORKERS UNION v. STATE OF JHARKHAND

Jharkhand High Court, (2006) ILLJ 813

[The Registrar, Trade Union-cum-Labour Commissioner on a complaint made by

one S.N. Singh (4th respondent) held that the election o f the office-bearers was not
in accordance with law and, therefore, refused to register the newly elected mem­
bers o f the Executive Committee. It also directed the Executive Committee to take
steps for fresh election o f the members o f executive and to make interim arrange­
ment. After about 3 months the Registrar cancelled the registration o f the Trade
Union under Section 10(b) o f the Trade Unions Act which provides that the Regis­
trar may cancel the registration o f a trade union if he is satisfied that the certificate
has been obtained by fraud or mistake or the trade union has ceased to exist or has
and after notice o f Registrar contravened any provision of Trade Unions Act.
Thereupon the petitioner challenged the order o f cancellation in a writ petition
before the High Court. A Bench o f the High Court refused to decide the case on
merit but gave liberty to the union to prefer appeal before the competent court/
tribunal. Excerpts from the judgment of the court delivered by S.J. Mukopadhaya J
follow:]
Learned counsel for 4th respondent submitted that the writ petition has be­
come infructuous as the registration of the Trade Union has subsequently been
cancelled. He relied on an order o f the Supreme Court dated July 12,2005 passed in
S.L.R (Civil) No. 11904 of2005.
In the present case, certain interim order was passed against which the 4th
respondent moved before the Supreme Court by preferring the aforesaid S.L.R In
the meantime, the registration o f the Trade Union having been cancelled, the Supreme
Court held that the said Special Leave petition has become infructuous, which was
dismissed having become infhictuous.
Counsel for the petitioner submitted that the issue, as raised in the present
case, still subsists, as persons are acting on the basis o f impugned Order No. 192
 T rade U n io n s , C o l l ectiv e B a r g a in in g a n d T r ipa r tism 13 3

dated February 4,2005. But such submission cannot be accepted in view o f the fact
that the registration o f the Trade Union has been cancelled.
Once the registration o f the Trade Union has been cancelled and it has been
de-recognized, the Registrar o f Trade Union has no jurisdiction to give any direc­
tion in respect to such (de-recognised) Trade Union. After the de-recognising o f
Trade Union the Order No. 192 dated February 4,2005 cannot be acted upon either
for the purpose o f election or for the purpose o f interim arrangement. The said
Order No. 192 dated February 4, 2005 having lost its force, this writ petition has
become infructuous. The interim order passed on February 23,2005 i s , accordingly,
vacated. This writ petition is dismissed being infructuous.

G. Immunity from Criminal Conspiracy

Section 17 o f the Trade Unions Act, 1926 which deals with criminal conspiracy in
trade disputes provides: “N o officer or member o f a registered Trade Union shall be
liable to punishment under sub-section (2) o f Section 120 B o f the Indian Penal
Code, in respect o f any agreement made between the members for the purpose o f
furthering any such object o f the Trade Union as is specified in Section 15, unless
the agreement is an agreement to commit an offence.”
Section 15 sets out the object for which the general funds may be spent. Apart
from the specified objects, there is an omnibus clause empowering the appropriate
Government to add to the list by notification in the Official Gazette. The immunity
given under section 17 is o f a limited nature. Section 120 B o f the IPC is really the
punishing section in respect o f Sec. 120A. What Section 17 provides is that, an
agreement to do things in furtherance o f the objects set out in Section 15 will not
amount to a criminal conspiracy. Firstly, it will be observed that those objects are
limited to the objects for which the funds o f a Trade Union can be spent and do not
relate to general objects. If in ftirtherance o f such a limited objective there is an
agreement to commit an illegal act or an act which is not illegal, by illegal i^jeans,
then such an agreement will not amount to an offence under Section 120A. But to,all
this there is a blanket exception, namely, that an agreement to commit an offence will-
never be excused. “Sections 17 and 18 o f the Indian Trade Unions Act... are based
on the English law.... Let me set out briefly the history o f Trade Union legislation in
England. Trade unionism existed in England from medieval times, but the first at­
tempt at legislation was inimical to it and consisted ofwage fixing laws. The Combi­
nation Act o f 1800 made all combination o f workmen to regulate conditions o f their
work illegal. All contracts, covenants and agreements for obtaining an advance in
wages, altering the hours o f work, preventing workmen hiring themselves or at­
tempting to induce them to leave work, were declared illegal. As a result o f the work
134 L a b o u r L aw and L a b o u r R elations

of the Benthamite reformers was passed the Combination Law Repeal Act 1824.
This Act expressly removed ail criminal liability for conspiracy for combining to
alter certain conditions^f work or to induce persons to leave, refuse or return to
work. It however contained penal provisions against the use o f violence, threats
and intimidation. It was replaced by the Combination Laws Repeal Amendment Act
1825, which narrowly defined the combinations which would be free from criminal­
ity. The 1825 Act did not expressly legalise strikes and lock-outs or the persuasion
o f persons to leave, refuse or return to work. It was nevertheless recognised in
decided cases that the exercise o f the right to combine for the purpose o f raising
wages or altering the hours o f work necessarily involved the right to withhold
labour or employment for that special purpose. In addition to penalising violence,
threats and intimidation, the 1825 Act, applied also to “molestation” and “obstruc­
tion.” The latter was somewhat eased by the Molestation o f Workmen Act 1859. As
a result o f a Royal Commission, the Trade Unions Act 1871 was passed. Itlegalised
Trade Unions and instituted a system o f voluntary registration conferring on them
a special legal status and imposing obligations. The Act makes it clear that the
members o f a trade union shall not be liable for criminal conspiracy because its
purposes are in unlawful restraint o f trade. A number o f deficiencies were sought to
be removed by the Amendment o f 1876. The Trade Unions Act o f 1871 did nothing
to alter the criminal law except as to conspiracy. Amendment o f the law relating to
violence, threats, and molestation was made by a separate Act passed in the same
year, namely, the Criminal Law Amendment Act 1871 which repealed the Acts o f
1825 and 1859 and substituted other provisions making it an offence for any person
to use violence, threats, intimidation, molestation or obstruction with a view to
coercing an employer to act in certain specified ways e.g. to become a member o f a
trade union, quit work etc. A mere threat to strike was however not an offence. For
the purpose o f the Act, “molestation” and “obstruction” were defined as meaning
the persistent following o f a person, hiding his tools, clothes and property watch­
ing or besetting him etc. Except these specified items, no person was to be liable to
punishment for doing or conspiring to do any act on the ground that it restrained or
tended to restrain the free course o f trade. The next statute was the Conspiracy and
Protection o f Property Act 1875 which replaced the 18 71 Act. Under this Act, any
act done in combination would not be criminal unless the act itself, when done by
one person, would be a crime. The prohibition against violence, intimidation, per­
sistent or disorderly following, hiding tools and watching and besetting continued.
It made peaceful picketing lawful making it clear that attending a place in order
merely to obtain or communicate information was not to be deemed as watching or
besetting. Various legal decisions however threw doubts on the rights conferred by
the existing statutes and to remove (them) the Trade Disputes Act 1906 was passed.
 T rade U n io n s , C o l l ec t iv e B a r g a in in g and T ripa rtism 13 5

It made peaceful picketing as well as peaceful persuasion to strike lawful. It was

followed by the Trade Disputes and Trade Unions Act 1927. This was the outcome
of the 1926 strikes and sought to restrict trade union activities in many ways. It
declared certain strikes and lock-outs to be illegal and excluded them from protec­
tion. The definiti'on o f ‘strike’ was curtailed. The definition o f ‘intimidation’ made
stricter so as to make picketing impracticable altogether. The Act was bitterly re­
sented by the trade utiions and was repealed in its entirety by the Trade Unions Act
1946 passed by the Labour Government which came to power in 1945. This was
followed by the Industrial Disputes Order 1951. It did not prohibit strikes or lock­
outs but retained in modified form provisions for settlement o f disputes by arbitra­
tion. In 1959 the order was revoked and the terms and conditions o f Employment
Act o f 1959 were passed.”* /
■‘In Rookes v. Barnard, the House o f Lords has invented a new extension of
civil liability, and then reduced to insignificance the protections o f the Trade Dis­
putes Act, 1906, which should have been a defence against i t . . .. The House of
Lords has now extended such tort liability once again in a trade dispute. Briefly,
their lordships decided for the first time, that threats to break a contract can be
tortious “intimidation”, on a par with threats o f violence; and that the 1906 Act
does not protect such “intimidation. . . (and thereby) . . . . extended the tort o f
“intimidation” far beyond any previous authorities. By including breach o f con­
tract among “unlawful” acts for this purpose they have overturned elementary
principles, both in regard to privity o f contract and other\vise. The new liabilities
made possible by use o f these concepts in conjunction with the tort (or may be
even the crime) o f conspiracy could be extensive. Further . . .. their Lordships’
interpretation o f sections I and 3 o f the Trade Disputes Act, 1906, empties them o f
significant protection for those acting in trade disputes. In particular, the protection
afforded even to union officials by section 3 must now be regarded as o f uncertain
value.**

“[T]he Trade Disputes Act, 1965 was passed to minimise the effect o f the
above decision. Then followed the decisions in J. T. Stratford & Son Ltd., v. Lindley
<&Anr : Emerald Construction Co, Ltd., v. Lowthian & Ors.; Torquay Hotel Co.
Ltd. v. Cousins & Ors.; and Ford Motor Co. Ltd. v. Amalgamated Union ofEngi-.
neering and Foundry Workers & Ors., which did not totally free the industrial
relations from the operation o f law o f torts and the Trade Disputes Act o f 1906 was
found to be inadequate. Parliament passed the Industrial Relations Act, 1971 to

See Jay Engineering Works Ltd. v. State o f West Bengal, AIR 1968 Cal. 407.
See K.W. Wedderburn, “Intimidation and the Right to Strike”, 27 Mod. L. Rev. 257-280
(1964),
13 6 L a b o u r L aw and L a b o u r R elations

alleviate the position of labour to some extent... Section 10 of the (English) Trade
Unions Act, 1984, reimposes the tortious liability and, in effect, nullifies the effect
o f section 13 o f the Trade Union and Labour Relations Act, 1974 by providing;
(1)Nothing in Section 13 ofthe 1974 Act shall prevent an act done byatrade
union without the support o f a ballot from being actionable in tort (whether or not
against the trade union) on the ground that it induced a person to break his contract
o f employment or to interfere with its performance.
(2) Nothing in Section 13 o f the 1974 Act shall prevent an act done by a trade
union from being actionable in tort (whether or not against the trade union) on the
ground that it induced a person to break a commercial contract or to interfere with
its performance where— (a) one o f the facts relied upon for the purpose o f estab­
lishing liability is that the union induced another person to break his contract o f
employment or to interfere with its performance; and (b) by virtue o f sub-section (1)
above, nothing in section 13 o f the 1974 Act would prevent the act o f inducement
referred to in paragraph (a) above from being actionable in tort....”

H. Immunity from Civil Suit in Certain Cases

Section 18, which provides for immunity from civil action provides: “(1) No suit or
other legal proceeding shall be maintainable in any civil court against any regis­
tered Trade Union or any officer or member thereof in respect o f any act done in
contemplation or furtherance o f a trade dispute to which the member o f the Trade
Union is a party on the ground only that such act induces some other person to
break a contract of employment or that it is an interferences with the trade, business
or employment or with the right o f some other person to dispose o f his capital or of
his labour as he wills.”
(2) A registered trade union shall not be liable in any suit or other legal pro­
ceeding in any Civil Court in respect o f any tortious act done in contemplation or
furtherance o f a trade dispute by an agent o f the Trade Union if it is proved that
such persons acted without the knowledge of, or contrary to express instructions
given by the executive o f the Trade Union.”

ROHTAS INDUSTRIES LTD. V. ROHTAS

INDUSTRIES STAFF UNION
Supreme Court, (1976) ILLJ 274

[A dispute arose between the management o f Rohtas Industries and the unions
over the payment o f enhanced wages and bonus and failure to carry out an award.
Two unions o f workers served strike notices on the management, which led to a
strike. The strike was terminated in pursuance to an agreement to refer the dispute
to arbifration under section lOA o f the Industrial Disputes Act. The arbitrators
 T rade U n io n s , C ollective B a r g a in in g a n d T r ipa r tism 13 7

were to decide two questions: (a) The claim o f the workmen for wages for the period
o f striite; and (b) the claim o f the management for compensation for its losses
suffered due to strike. The arbitrators held that the workmen were not entitled to
wages for the strike period, and that they were liable to pay to the company com­
pensation o f Rs. 80,000/- and I/8th o f the total costs o f the arbitration. Aggrieved
by the second finding the Mazdoor Sangh filed a writ petition. The High Court
quashed that part o f the award, which directed payment o f compensation by the
workers to the management. The management then appealed, to the Supreme Court.
Two main questions were raised; (i) whether an award under S . 10-A o f the Industrial
Disputes Act was amenable to correction under Art. 226 o f the Constitution? (ii)
whether the industrial workers who had gone on an illegal strike could be asked to
make good the loss suffered by the employer because o f the illegal strike ? Excerpts
relating to employer’s right to recover compensation from workmen participating in
an illegal strike and scope o f immunity under section 18 o f the Trade Unions Act
from the judgment o f the court delivered by Krishna Iyer, J. fo llo w ;]
The award o f the Tribunal, in its totality, is quite prolix, reasons stated in
arguing out its conclusions many and thus it is just to state that in the present case
the arbitrators— ^two retired Judges o f the Calcutta High Court— ^have made a suffi­
ciently speaking award both on facts and on law. They have referred to the strike
being illegal with specific reference to the provisions o f the Act, but faulted them­
selves in law by upholding a case for compensation as axiomatic, necessarily based
on a rule o f common law, i.e., English common law. The rule o f common law thus
necessarily arising on the face o f the award is a clear question o f law.
What is this rule o f common law ? Counsel for the appellants inevitably relied
on the tort o f “conspiracy” and referred us to Moghul Steamship Co., [ 1872] A. C.
25\Allen \. Flood, [1898] A. C. X^Quinnv. Leathern, [1901] A. C. 495 and5orre/v.
Smith, [1925] A. C 700. These decisions o f the English Courts are responses to the
societal requirements o f the industrial civilisation o f the 19th Century England.
Trade and Industry on the laissez faire doctrine flourished and the law o^the torts
was shaped to serve the economic interests o f the trading and industrial coihmu-
nity. Political philosophy and economic necessity o f the dominant class anim^e
legal theory. Naturally, the British law in this area protected business from the
operations o f a combination o f men. Including workers, in certain circumstances.
Whatever the merits o f the norms, violation o f which constituted ‘conspiracy’, in
English Law, it is a problem for creative Indian jurisprudence to consider, detached
from Anglophonic inclination, how far a mere combination o f men working for
furthering certain objectives can be prohibited as a tort, according to the Indian
value system. ... Our Constitution is sensitive to workers’ rights— our story o f
freedom and social emancipation led by the Father o f the Nation has employed.
13 8 L a b o u r L aw and L a b o u r R elations

from the highest o f motives, combined action to resist evil and to right wrong even
if it meant loss o f business profits for the liquor vender, the brothel- keeper and the
foreign-cloth dealer. Without expatiating on these seminal factors, we may observe
that English history, political theory and life-style being different from Indian con­
ditions, replete with organised boycotts and mass satyagrahas, we cannot incorpo­
rate English torts without any adaptation into Indian law. A tort transplant into a
social organism is as complex and careful an operation as a heart-transplant into an
individual organism, law being life’s instrumentality and rejection or exotics being a
natural tendency. Here, judges are sociological surgeons.
Let us examine “conspiracy”, in the English law o f torts to see if even there it is
possible to hold that an illegal strike per se spells the wrong. We may state that till
recently it could not be said with any certainty that there was any such tort as
“conspiracy”. Salmond thought that there was not (see Salmond Law o f Torts— P.
5 0 5 ,15th Ed.). It is interesting that in that Edition o f Salmond, Moghul.,, is linked up
by the learned authority with a capitalist economy. Be that as it may, the common
law o f England today is more or less clear, some rumblings notwithstanding.
“A combination wilfully to do an act causing damage to a man in his trade or
other interests is unlawful and if damage in fact is caused is actionable as a con­
spiracy. To this there is an exception where the defendands real and predominant
purpose is to advance their own lawful interests in a matter in which they honestly
believe that those interests would directly suffer if the action against the plaintiff
was not taken. In truth, the Crofter case has mades. I o f the Trade Disputes Act,
1906, largely unnecessary, for there will now be fe w conspiracies arising out o f
trade disputes which are not protected at common law”,
(pp. 508-509,15th Edn. Sweet & Maxwell) (Emphasis, ours)
The essence o f actionable conspiracy is best brought out by Salmond;
“The tort is unusual because it emphasises the purpose o f the defendants
rather than the results o f their conduct”.
(p. 513,15th Edn. Sweet & Maxwell) (Emphasis, ours)
Even when there are mixed motives, “liability” will depend on ascertaining
which is the predominant object or the true motive or the real purpose o f the
defendant. Mere combination or action, even if it be by illegal strike, may be far
away from a (conspiracy) in the sense o f the law because in all such cases, except
in conceivably exceptional instances, the object or motive is to advance the work­
ers’ interests orto steal a march over a rival union but or rarely to destroy or damage
the industry. It is difficult to fancy workers who live by working in the industry
combining to kill the goose that lays the golden eggs. The inevitable by-product o f
 T RADE U n io n s , C o l lective B a r g a in in g and T ripartism 13 9

combination for cessation o f work may be loss to the management but the obvious
intendment o f such a collective bargaining strategy is to force the employer to
accept the demand o f the workers for betterment o f their lot or redressal o f injustice,
not to inflict damage on the boss. In short, it is far too recondite for an employer to
urge that a strike, albeit illegal, was motivated by destruction o f the industry. A
scorched earth policy may in critical times o f a war, be reluctantly adopted by a
people, but such an impugned motive is largely imaginary In strike situations.
However, we are clear in our minds that if some individuals destroy the plant or
damage the machinery wilfully to cause loss to the employer, such individuals will
be liable for the injury so caused. Sabotage is no weapon in workers’ legal armory.
The leading case o f Sorrel v. Smith, [ 1925] A. C. 700, emphasises that a combi­
nation o f two or more persons for the purpose o f injuring a man in his trade is
unlawful and, if it results in damage to him, is actionable. The real purpose o f the
combination is the crucial test between innocence and injury. It may well be that
even where there is an offending object, it may be difficult for a court to hold that
there is a tort if one may read into the facts an equal anxiety for the defendants to
promote their success which produces the plaintiff’s extinctioh. There is a penum-
bral region, as Lord Summer pointed out in Sorrel {supra) :
‘“ How any definite line is to be drawn between acts, whose real purpose is to
advance the defendant’s interests, and acts, whose real purpose is to injure the
plaintiff in his trade, is a thing which I feel at present beyond my power”.
It is absolutely plain that the tort o f conspiracy necessarily involves advertence
to and affirmation o f the object o f the combination being the infliction o f damage or
distraction on the plaintiff. The strike may be illegal but if the object is to bring the
employer to terms with the employees or to bully the rival trade union into submis­
sion, there cannot be an actionable combination in tort. In the present case, it is
unfortunate that the arbitrators simply did not investigate or pass upon the object of
the strike. If the strike is illegal, the tort o f conspiracy is made out, appears ^o be the
proposition o f law writ tersely into the award. On the other hand, it is freely conceded
by counsel for the appellant that the object was inter-union rivalry. There is thiis^
clear lapse in the law on the part o f the arbitrators manifest on the face o f the award.
We have earlier referred to the need for a fresh look at conspiracy as a tort
when w e bodily borrow the elements o f English law and apply them to Indian law. It
is as well that we notice that even in England considerable criticism is mounting on
the confused state o f the law o f conspiracy. J.T. Cameron has argued (in 1965, Vol.
28 Modem Law Review, P. 448) that ;“experience has already shown that con­
spiracy is a hydra perfectly capable o f growing two heads to replace an amputated
one, and the authorities contain material which could be used to impose liability in
140 L abour L aw and L a b o u r R elations

very wide and varied circumstances. It is time, therefore, to consider what form
legislation should take, and to urge that the proper answer is to remove the tort of
conspiracy from the law altogether, and with it the Rookes v. Barnard version o f
intimidation, and to put in its place a different basis of liability”.
(Conspiracy and Intimidation : An Anti-Metaphysical Approach)
The author complains that the fundamental basis is unsatisfactory and uncer­
tain and demands that a complete rewriting o f the principles on which the tort of
conspiracy and intimidation is necessary.
We may as well suggest that, to silence possible mischief flowing from the
confused state o f the law and remembering how dangerous it would be if long,
protracted, but technically illegal strikes were to be followed by claims by manage­
ments for compensation for loss o f profits, a legislative reform and restatement o f
the law were undertaken at a time when the State is anxious for industrial harmony
consistent with workers’ welfare. This rather longish discussion has become nec­
essary because the problem is serious and sensitive and the law is somewhat
slippery even in England. We are convinced that the award is bad because the error
o f law is patent.
The High Court has touched upon another fatal frailty in the tenability o f the
award o f compensation for the loss o f profits flowing from the illegal strike. We
express our concurrence with the High Court that the sole and whole foundation of
the award o f compensation by the arbitrators ignoring the casual reference to an
ulterior motive o f inter-union rivalry, is squarely the illegality o f the strike. The
workers went on strike claiming payment ‘o f bonus as crystallized by the earlier
settlement, dated 2.10.1957. There thus arose an industrial dispute within S. 2 (k) of
the Act. Since conciliation proceedings were pending, the strike was ipso jure
1llegal (Ss. 23 and 24). The consequence, near or remote, o f this combined cessation
o f work caused loss to the management. Therefore, the strikers were liable in dam­
ages to make good the loss. Such is the logic of the award.
It is common case that the demands covered by the strike and the wages
during the period o f the strike constitute an industrial dispute within the sense o f S.
2 (k), o f the Act. Section 23, read with S. 24, it is agreed by both sides, make the
strike in question illegal. An “illegal strike” is a creation o f the Act. As we have
pointed out earlier, the compensation claimed and awarded is a direct reparation for
the loss o f profits o f the employer caused by the illegal strike. If so, it is contended
by the respondents, the remedy for the illegal strike and its fallout has to be sought
within the statute and not de hors it. If this stand o f the workers is right, the remedy
indicated in S. 26 o f the Act, viz., prosecution for starting and continuing an illegal
strike, is the designated statutory remedy. No other relief outside the Act can be
 T rade U n io n s , C o l lective B a r g a in in g and T r ipa rtism 141

claimed on general principles o f jurisprudence. The result is that the relief o f com­
pensation by proceedings in arbitration is contrary to law aihd bad.
The Premier Automobiles case.... settles the legal issue involved in the above
argument. The Industrial Disputes Act is a comprehensive and self-contained code
so far as it speaks and the enforcement o f rights created thereby can only be
through the procedure laid dovm therein. Neither the civil court nor any other
tribunal or body can award relief. Untwalia, J., speaking for an unanimous court,
has, in Premier Automobiles.... observed :
“The object o f the Act, as its preamble indicates, is. to make provision for the
investigation and settlement o f industrial disputes, which means adjudication o f
such disputes also. The Act envisages collective bargaining, contracts between
union representing the workmen and the management, a matter which is outside the
realm o f the common law or the Indian law o f contract.”
After sketching the scheme o f the Act, the learned judge stated the law thus:
“. . . .the civil court will have no jurisdiction to try and adjudicate upon an
industrial dispute if it concerned enforcement o f certain right or liability created
only under the Act.”
“In Doe v. Bridges (1831) I B & Ad. 847....at p. 859 are* the famous and oft
quoted words o f Lord Tenterden, CJ., saying:
“Where an Act creates an obligation and enforces the performances in a speci­
fied manner, we take it to be a general rule that performance cannot be enforced in
any other.”
Barraclough v. Brown and others [1897] A. C. 615, decided by the House o f
Lords is telling, particularly Lord Watson’s statement o f the law at p. 622 ;
“The right and the remedy are given uno Jlatu and one cannot be dissociated
from the other.”
In short, the enforcement o f a right or obligation under the Act, must be a
remedy provided uno Jlatu in the statute. To sum up, in the language o f the l^emier
Automobiles Ltd.... “If the industrial dispute relates to the enforcement o f a riglit or
an obligation created under the Act then the only remedy available to the suitoNs
to get an adjudication under the Act.”
Since the Act which creates rights and remedies has to be considered as one
homogenous whole, it has to be regarded uno flatu in one breath, as it were. On this
doctrinal basis, the remedy for the illegal strike (a concept which is the creature not
o f the common law but o f S. 24 o f the Act) has to be sought exclusively in S. 26 o f
the Act. The claim for compensation and the award thereof in arbitral proceedings
is invalid on its face — “on its face” we say because this jurisdiction point has been
considered by the arbitrators and decided by committing an ex facie legal error.
142 L a b o u r L aw and L a b o u r R e la t io n s

It was argued, and with force in our view, tiiat the question o f compensation by
workers to the management was wholly extraneous to the Act and, therefore, out­
side the jurisdiction o f a voluntary reference o f industrial dispute under S. 10-A.
While we are not called upon to pronounce conclusively on the contention, since
we have expressed our concurrence with the High Court on other grounds, we rest
content with briefly sketching the reasoning and its apparent tehability. The scheme
o f the Act, if we may silhouette it, is to codify the law bearing on industrial dispute.
The jurisdictional essence o f proceedings under the Act is the presence o f an
“industrial dispute”. Strikes and lock-outs stem from such disputes. The machinery
for settlement o f such disputes at various stages is provided for by the Act. The
statutory imprimatur is given to settlement and awards, and norms o f discipline
during the pendency o f proceedings are set down in the Act. The prescriptions
stipulated, as for example the prohibition o f strikes, are followed by penalties, if
breached. Summary procedures for adjudication as to whether conditions o f ser­
vice, etc., o f employees have been changed during the pendency o f proceedings,
special provision for recovery o f money due to workers from employers and other
related regulations, are also written into the Act. Against this backdrop, we have to
see whether a claim by an employer from his workmen o f compensation consequent
on any conduct o f theirs, comes within the purview o f the Act. Suffice it to say that
a reference to arbitration under S. 10-A is restricted to existing or apprehended
industrial disputes. Be it noted that we are not concerned with a private arbitration,
but a statutory one governed by the Industrial Disputes Act, deriving its validity,
enforceability and protective mantle during the pendency o f the proceedings, from
S. lOA. No industrial dispute, no valid arbitral reference. Once we grasp this truth,
the rest o f the logic is simple. What is the industrial dispute in the present case ?
Everything that overflows such disputes spills into areas where the arbitrator de­
riving authority under S. 10-A has no jurisdiction. The consent o f the parties cannot
create arbitral jurisdiction under the Act. In this perspective, the claim for compen­
sation can be a lawful subject for arbitration only if it can be accommodated by the
definition o f “Industrial dispute” in S. 2(k), Undoubtedly this expression must
receive a wide connotation, calculated, as it is to produce industrial peace. Indeed,
the legislation substituted for free bargaining between the parties a binding award;
but what disputes or differences fall within the scope o f the Act? This matter fell for
the consideration o f the Federal Court in Western India Automobile Association,
[1949-1 LLJ 245]. Without launching on a long discussion, we may state that com­
pensation for loss o f business is not a dispute or difference between employers and
workmen ‘which is connected with the employment or non-employment or the
terms o f employment or with the conditions o f labour, o f any person.’ We are
unable to imagine a tort liability or compensation claim based on loss o f business
 T RADE U n io n s , C ollective B a r g a in in g and T r ipa r tism 143

being regarded as an industrial dispute as defined in the Act-, having regard to the
language used, the setting and purpose o f the statute and the. industrial flavour o f
the dispute as one between the management and workmen.
In this context, we are strengthened in our conclusion by the provisions o f S.
33C, which provides for speedy recovery o f money due to workmen from an em­
ployer under settlement or an award, but not for the converse case o f money due to
an employer from workmen. There is no provision in the Act, which contemplates a
claim for money by an employer from the workmen. And indeed, it may be a little
startling to find such a provision, having regard to workmen being the weaker
section and Part IV o f the Constitution being loaded in their favour. The new light
shed by the beginning clauses o f Part IV must illumine even pre-independence
statutes in the interpretative processes. As yet, and hopefully, claims by employers
against workmen on ground o f tortix)us liability have not found a place in the
pharmacopoeia o f Indian Industrial Law. However, as earlier stated, we do not
pronounce finally as it is not necessary.
There was argument at the Bar that the High Court was in error in relying on S.
18 o f the Trade Unions Act, 1926 to rebuff the claim for compensation. We have
listened to the arguments o f Shri B.C. Ghosh in support o f the view o f the High
Court, understood on a wider basis. Nevertheless, we do not wish to rest our
judgment on that ground....
We dismiss the appeal....

VIDYA SAGAR INSTITUTE OF MENTAL HEALTH NEURO SCIENCES v.

VIDYASAGAR HOSPITAL EMPLOYEES’ UNION
Delhi High Court, (2006) ILLJ 781

[The plaintiff Vidya Sagar Institute o f Mental Health and Neuro Sciences filed a suit
seeking (i) a declaration that the strike threatened by the defendant employee’s
Union was illegal; (ii) a restraint order against the union and their members from
holding any demonstration, dharna, slogan shouting and blocking the ingress an'd,
egress o f the plaintiff, its officers, patients, visitors and other persons visiting the
hospital up to a distance o f 500 meters from the radius o f the hospital. It was
contended by the plaintiff that despite the efforts made by the plaintiff to amicably
resolve the dispute and to consider some of the demands o f the employee’s union,
the defendant sent a notice o f strike on April 29, 2002, which was replied by the
plaintiff where it was also advised that the defendant should desist from militant
and disruptive activities. However, all the efforts o f the management to settle the
dispute amicably and reconcile the matter seem failed. The defendant vide their
144 L a b o u r L aw and L a b o u r R elations

letter dated June 14,2002 threatened the plaintiff to settle their demands before July
23,2002 failing which it would resort to coercive methods of raising slogan shout­
ing, blockage o f passage and causing disruption o f medical facilities in the hospital
and would go on strike with effect from June 24,2002. This necessitated the plaintiff
to file the present suit for declaration o f a permanent injunction. Excerpts o f the
judgment delivered by Anil Kumar J. follow ;]
By an interim order dated June 21, 2002, the defendant was restrained from
holding demonstration which may in any way obstruct the ingress and egress of
any member o f plaintiff-management or any employee o f the plaintiff and/or any
patient or any visitor to the hospital and that they will hold the demonstration
peacefully at least at a distance o f 50 meters from the entrance of the premises of the
plaintiff. Though after the interim order was passed against the defendant, an
appearance was put through a counsel on August 20, 2002 by the defendant,
however, on subsequent-dates, no one appeared nor written statement was filed
entailing ex parte proceedings against the defendant. The plaintiff thereafter filed
its evidence on affidavit and proved the documents....
The plaintiff’s contention is that despite the reference having been sent by the
labour authorities for adjudication, the defendant has threatened to take law in his
own hands and resort to slogans shouting, blockage o f passage and disruption of
medical facilities to patients and other visitors.
I have perused the pleas o f the plaintiff in the plaint and the deposition o f the
witness o f the plaintiff, which have remained unrebutted . As the pleas o f the
plaintiff have not been refuted, inevitable inference is that suit was signed and
verified and instituted by a duly authorized person and the plaintiff has been com­
plying with all rules, procedures, bye-laws as provided under the Labour Laws and
the defendant does not have any right to take law in his own hands. The plea of the
plaintiff that the demands o f the defendant are illegal and arbitrary had not been
disputed and rebutted. In any case, the plaintiff has a right to continue its activities
without any disruption from the defendant and its members. The defendant may
have a right to vent their grievances, however, they cannot disrupt the fiinctioning
and cause any inconvenience to the patients, visitors and the members o f the staff
of the plaintiff.
Law on the right to hold demonstrations by the unions/employees for pressing
their demands stands crystallized by various judgments o f the Apex Court and by
High Courts.
[The court then referred to various judgments o f the Supreme Court and High
Courts.]
 T rade U n io n s , C o llective B a r g a in in g and T ripartism 145

From these following principles can be culled out:

1. Civil Court has the jurisdiction to entertain suit o f this nature.
2. Immunity given to the Unions under Section 18 o f the Trade Unions Act,
1926, does not extend to conduct those acts, which may amount to offence.
3. Peaceful demonstration is a fundamental right o f the union’s employees.
4. It is the legitimate right o f the workers to make legitimate demands and when
not met even go on peaceful but legal strike, a right so recognized under labour
laws. Trade Union has a right to pursue its Trade Union activities by peaceful
methods. However in exercise o f such a right Unions/employees cannot disrupt the
functioning o f the employer or obstruct willing workers from performing their du­
ties. Further they cannot indulge in the acts o f violence, physical assault, intimida­
tion, threats, etc.
5. There is no right o f the unions/employees to hold demonstrations at the
residence o f the employer. This is specifically prohibited by the provisions o f the
Industrial Disputes Act and amounts to unfair labour practice on the part o f the
unions (see Schedule V Entry 6). Thus holding o f any kind o f demonstration even
physical demonstration is p e r se prohibited at the residence o f the employer.

6 . Thus while it may be the right o f the union to hold peaceflil demonstration,
such demonstrations cannot be allowed to become violentior intimidating in nature.
The safety o f those visitors who are visiting the emplo;j'er’s premises as well as
those willing workers, including their smooth ingress and egress is also to be
ensured. This balance is to strike between the two competing and conflicting inter­
ests. The Courts have devised the methods to ensure it by fixing the distance from
the employer’s premises within which such demonstration, etc. would not be per­
missible meaning thereby Unions can resort to these demonstrations only beyond
a particular distance. In this way they are able to hold peaceful demonstration and
at the same time it is ensured that such peacsful demonstration does not relegate
the aforesaid rights o f the employer. This is a message, which runs through all the
aforesaid judgments.
The defendants or their employers have no business or cause to cause inconr
venience, harassment or to extend threats to plaintiff, his employees and cause
obstruction to these or others who may visit the plaintiff. Such conduct on the part
of the employees o f the defendants for the redressal o f their grievance to put
pressure indirectly and disrupt the functioning o f the plaintiff is not permissible nor
can be permitted in the present facts and circumstances.
Considering the facts, the defendants cannot be allowed to disrupt the activi­
ties, functioning, ingress and egress o f visitors and the patients and create nui­
146 L a b o u r L aw and L a b o u r R elations

sance by raising slogans near the hospital where patients need peace and solitude.
The right o f the defendants to have a peaceful demonstration can be vouched
safely, if they are allowed to hold peaceful demonstration without making such
nuisance which will disrupt the solitude and peace o f the patients and the willing
workers, if they are allowed to do it at a distance o f 200 meters from the boundary o f
the premises o f the plaintiff.
In totality o f circumstances. I, therefore, hold that the threat o f strike given by
the defendant is illegal and 1 restrain the defendant and its members from holding
demonstration, Dharnas, slogan shouting and in any way blocking the ingress and
egress o f the plaintiff, its office bearers, patients, visitors and other persons visit­
ing the hospital in any manner, however, they may be entitled to stage peaceful
demonstration and dharnas at a distance o f 200 meters from the outer radius o f the
hospital known as VIMHANS, 1, Institutional Area, Nehru Nagar, New Delhi. Cost
o f the suit is also awarded to the plaintiff and against the defendants.

NOTE

Consider the following recommendations o f the (Second) National Commission on

Labour:
(i) Amendments made in section 4 recently appear to disentitle workers in the
unorganised sector from getting their trade unions registered. To over­
come this d ifFiculty, a specific provision may be made to enable workers in
the unorganised sector to form trade unions, and get them registered even
where an employer employee relationship does not exist or is difficult to
establish; and the proviso stipulating 10% o f membership shall not apply
in their case.
(ii) Negotiating agent should be selected for recognition on the basis o f the
check off system, with 66% entitling the union to be accepted as the single
negotiating agent, and if no union has 66% support, then unions that
have the support o f more than 25% should be given proportionate repre­
sentation on the college.
(iii) Compulsory for member o f all registered trade unions; check system in an
establishment employing 300 or more workers must be made
(iv) We would also recommend that recognition once granted, should be valid
for a period o f four years, to be co-terminus with the period o f settlement.
No claim by any other trade union/federation/centre for recognition should
be entertained till at least 4 years have elapsed from the date o f earlier
recognition. The individuaLworkers’ authorisation for check off should
 T rade U n io n s , C o l l ective B a r g a in in g and T r ipa rtism 147

also be co-terminus with the tenure o f recognition o f the negotiating agent

or college.
Govt, o f India, Report ofthe (Second) National Commission on Labour (2002)
p. 41-42.

I. The Closed Shop

Trade union pow^r: (i) Power to expel- “ The trade unions get much o f their
strength by means o f their power over their men. Their rules give them power to
expel a member or to discipline him if he does not obey a strike call. This means that
many a man will have to take part in a strike even though he disagrees with it. He
may want to go on working for his employer and earn his wages, yet he dare not do
so because he would be disciplined by his union and, if it is a closed shop, he would
lose his job.”
(ii) A newcomer must jo in - “A closed shop means a factory or workshop or
firm in which all the workmen are members o f a trade union. It is closed to everyone
except the members. Any newcomer who comes to work there must join the union.
If the newcomer refuses to do so, the others, already being members o f the union,
will insist in his dismissal. They tell the employer, ‘sack him or we will go on strike’.
The employer gives in. He dismisses the man. Or the man gives in and joins the
union.”
(iii) The 1971 Act— “When the Conservative Government came into power,
they passed the Industrial Relations Act 1971. One part o f it dealt with the ‘closed
shop’. The Act placed great difficulties in the way o f the ‘closed shop’. It virtually
abolished it. It gave every worker the right as between himself and his employer to
be a member o f such trade union as he might choose, or o f no trade union. If a man
applied for work, the employer could not stipulate that he should belong to this or
that union, or to any trade union at all. Although the statutory provisions were well
intended, nevertheless it has been authoritatively stated that: they met with^con-
siderable resistance from trade unions and in practice its closed shop provisions
were circumvented by many employers and unions. The closed shop continued
much as before. (Green paper quoted by the European Court o f Human Rights in
case of the three railway men. Young, James, and Webster v. United Kingdom."
(iv) The 1974 and 1976 Acts— “When the Labour Government came into
power, they repealed the Industrial Relations Act, 1971 and passed the 1974 Act.
They afterwards amended it by the 1976 Act. It contained elaborate provisions,
which were specially concerned with closed shops. The purpose was to make it
lawful for the employer to enforce a closed shop if he did it in accordance with an
agreement with a trade union called a ‘union membership agreement’.
14 8 L a b o u r L aw and L a b o u r R elatio ns

The 1974 Act contained a provision under which a man could object;
on grounds o f religious belief to being a member o f any trade union
whatsoever or on any reasonable grounds to being a member o f a
particular trade union. (See schedule I, paragraph 6 (5).
But the 1976 Act limited this so that he could only object ‘on the ground o f
religious belief to being a member o f any trade union whatsoever’ [see section I (e)].
That meant that in practice no man could ever object. No religion, so far as 1 know,
objects to a man joining a trade union.
So under the 1974 and 1976 Acts the closed shop was effectively closed. It was
shuttered and barred against anyone who was not a member o f an appropriate trade
union”.
(v) The Acts o f 1980 and 1982— “Much o f this has been altered by the
Employment Acts o f 1980 and 1982. In these Acts, the Government has made a
determined effort to bring our legislation on the closed shop into accord with the
European Convention on Human Rights.”
(See Lord Denning, The Closing Chapter (1983), pp. 197-200.)

II. COLLECTIVE BARGAINING

Collective bargaining has developed to some extent in India since Independence.

Inspiration for peaceful settlement o f differences between management and labour
came from Gandhiji, who in his autobiography expressed his philosophy o f indus­
trial relations th us;
Man is an engine whose motive power is the soul. The largest quantity o f work
will not be done by this curious engine for pay or under pressure. It will be done
when the motive force, that is to say the will or the spirit o f the creature, is brought
to its greatest strength by its own proper fuel, namely by the affections....
Assuming any given quantity o f energy and sense in master and servant, the
greatest material result obtainable by them will not be through antagonism to each
other, but through affection for each other. '
Article 19(l)(c) o f the Constitution o f India guarantees to all citizens the right to
form associations or unions and Article 19(4) gives power to the State to impose
reasonable restrictions thereon, in the interest o f safeguarding the sovereignty and
integrity o f India or public order or morality. In 1961, in All-India Bank Employees
Association v. National Industrial Tribunal^ it was argued that Article 19(1) (c)
guarantees, as a concomitant to its right to form associations or unions, a right to

' M.K. Gandhi, The Stoiy o f my Experiments with Truth (1956) as quoted in Mary Sun,
Collective Bargaining 57(1965).
2(1961)11 LLJ 385 at 396 (SC).
 TRADE U n io n s , C ollective B a r g a in in g and T ripa r tism 149

effective collective bargaining and a right to strike. But the Supreme Court rejected
the argument, saying that ‘even a very liberal interpretation o f sub-ci, (c) o f cl. (1) of
Art. 19 cannot lead to the conclusion that the trade unions have a guaranteed right
to an effective bargaining........” But even so the right is one o f social importance in
India’s industrial development.
The Second Five Year Plan, 1956^, stated: For the development.of an undertaking
or an industry industrial peace is indispensable. Obviously this can best be achieved
by the parties themselves. Labour legislation... can only provide a suitable framework
in which employers and workers can function. The best solution to common problems,
however, can be found by mutual agreement.” The Fourth Five Year Plan'* recognises
a decade later that “greater emphasis should be placed on collective bargaining and
on strengthening the trade union movement for securing better labour-management
relations supported by recourse in large measure to voluntary arbitration.
Collective Bargaining in M odem Industry : One o f the reasons why collec­
tive bargaining is a comparatively new phenomenon is that production methods
before the Industrial Revolution differed so much from those o f modem industry
that collective bargaining was not necessary. Agriculture was the predominant
occupation as it is still in industrially underdeveloped countr/es. Agricultural wages
and working conditions are hardly amenable to control by collective agreement.^
The development o f industries created completely n?w problems. The secu­
rity, which the worker enjoyed in a village community, due to closer contact with his
employer and the love and affection o f his family, gave way to insecurity, industrial
hazards and urban problems. The oppressive power o f management led to the^
organisation o f trade unions. The unions tried to help the workers in resolving their'
disputes with management and to strive for better working conditions.
In regulating relations between groups the rule that “might makes right” gradu­
ally gave way to control by one or more centers o f power. N ow men are working
towards newer techniques by which agreement, rather than coercion, can become
the core o f the needed regulation. These agreements are often reluctant, no doubt,
but less so than is submission to force. Collective bargaining is the teclmi^ue for
voluntary regulation o f industrial relations. Freedom o f contract is the correspond­
ing technique in commerce and industi^. Democracy is the technique in g o v m -
ment and efforts are beginning at voluntarism in international relations.
What is Collective Bargaining ? Collective bargaining is a method by which
problems o f wages and conditions o f employment are resolved amicably (although

^ At'574.
A Draft Outline 387 (1966).
^ ILO, Collective B argaining : A Workers’ Education M anual 12-14 (1960) (hereinafter
cited as “ILO Collective Bargaining".
150 L a b o u r L aw and L a b o u r R elations

often reluctantly) peacefully and voluntarily between labour and management. The
system is highly developed in many countries and is making headway slowly in
India.
The prerequisites for its success are, first, unions, which are neither controlled
nor seriously influenced by the employers, and, second, some rough equivalence
o f bargaining power on the two sides o f the table. Unorganised workers are usually
helpless; they have little or no power to bargain against their employer. To each he
can say, “If you don’t like my terms, go work somewhere else”. Each needs a job,
and may have to compete with other workers by offering to work for a pittance. The
workers’ key to power is to combine. This gives bargaining strength, and the power
to resist exploitation and unjust discrimination.^
A dvantages: Advantages o f collective bargaining, in comparison to adjudica­
tion, are first, that it is quick and efficient in that the parties do not waste their time
in unnecessary litigation; second, that it is more democratic to let the parties re­
solve their own disputes; and third, that it produces more harmonious relationship
between employer and workers.’ Such harmonious relations benefit workers and
employers alike. They contrast sharply, and most favourably, with the bitterness,
expense, and delay that mark adjudication.
Disadvantages ; Disadvantages o f collective bargaining are; first, that the
consumer is not represented in the bargaining, but yet bears the burden o f settle­
ments raising wages and the prices he must pay; second, that collective bargaining
settlements flow more from power politics than from rational and moral thought;
and third, that under this system, when the bargaining parties fail to agree, intoler­
able strikes sometimes occur. Some prohibition, legal or practical, there surely must
be against the worst o f strikes. And some consideration there must be, too, for the
consumer whose interests entitle him to be represented at the bargaining table.
Bargaining Process : The process o f reaching agreement by collective bar­
gaining is excessively complicated. It necessitates a protracted and complex inter­
change o f ideas combining, as Professor Kennedy remarks, “argument, horse trad­
ing, bluff, cajolery and threats.”* “[B]y its very nature [it is] a rough, tough under­
taking. Its essence is the reluctant exchange o f commitments; both parties want to
yield less and get more. It is not qualitatively different from a business deal in which
both negotiators have something less than 100 percent trust one another. Nor is it
much different from the practice of diplomacy....”^

^ ILO, Collective Bargaining I.

’ H.A. Turner, Wage Policies and Collective B argaining: The Problems o f Underdeveloped
Countries 35 (1965).
* Vom D. Kennedy, Unions, Employees and Government 115 (1966).
^Neil W. Chamberlam, Source Book on Labour 31 (1964).
 TRADE U n io n s , C o llective B a r g a in in g and T ripartism 151

The job o f the negotiator in the collective bargaining process is as difficult, if

not more so, than that o f a diplomat. Like a diplomat, he must speak less, convey
more. He must keep his mouth shut and ears open, unless the occasion demands
speech. He must lay his cards on the table shrewdly. At the same time, he must
continuously probe into the strengths and weaknesses o f the position o f his oppo­
site number. He must be able to change his position in the light o f new information
obtained and the attitudes o f the other side, so that if a showdown has to come the
battlefield will be well prepared.
“An important element in the bargaining position.... will be its own internal
unity o f purpose and organisational strength....” '® Another important element will
be the capacity to help split the opposition and so to weaken it. Through propa­
ganda, speeches and arguments, the union must foster the loyalty o f its followers
on whose determination the outcome o f any strike would depend. At the same time
it must build up the public’s image o f itself in its own favour.
The negotiations in a collective bargaining conference depend quite a bit on
the ability, intelligence, and maneuvering capacity o f the negotiators and on their
skilful handling o f the issues. It is basic that the negotiators must enjoy the full
confidence o f their own people. They should be authorised, so far as possible, to
take crucial decisions on the spot.
Before the actual conference begins, the parties hold separate meetings o f
their own sides to decide their attitudes on the various issues, to draft the terms o f
their demands, and to limit the concessions they are prepared to make. These
meetings quite often generate more'heat and controversy than the actuaPbargain-
ing sessions. Many demands are put forward by the rank and file. Extreme positioris
are demanded. Thus the meetings usually face a difficult task o f boiling down the
issues to a reasonable level in the light o f practical possibilities judged by experi­
ence, Sometimes, however, stronger positions are taken both to please the rank and
file and to allow room for later retreats. This calls for shrewd judgment on whether
such retreats can be explained so as to satisfy the lesser unionxofficials.
During the bargaining sessions, all issues or problems raised by,the parties are
debated. Generally, the conference will be looking forward to a contract that con­
sists o f many clauses. At the fu'st meeting, the leaders will submit their claims and
make their opening statements. A general discussion or exchange o f view's will
follow, and the order for taking up the various points may be settled. Then, a
detailed examination o f the various proposals will start. No records o f the discus­
sions are usually kept, but each issue on which agreement is reached is carefully
noted. If, during the deliberations, a new proposal is introduced, or an existing

K. Alexander. Collective Bargaining in Induatrial Labour in India 387 (1963).

15 2 L a b o u r L aw and L a b o u r R elations

proposal is changed substantially, a recess may be taken for private consideration.

Such adjournments are a common phenomenon in bargaining tactics; on grave
issues the rank and file o f the union or the board o f directors o f the company may
need to be consulted.

Once an overall agreement is reached, a provisional contract will be drafted. The

conference will consider it, and if both parties are now satisfied, they will adopt it.

Bargaining pow er : The strengths of the parties really determine the issues
rather than the wordy duels, which are largely put on for show. The strength o f the
employer depends upon (a) the availability of substitute labour (b) the market’s
demand for his goods and (c) the effect that a closure would have on the company
and its customers during a strike. The workers’ strength depends upon (a) their
capacity to undergo hardship during the strike (b) the availability o f alternate em­
ployment for them and (c) the financial position o f the union, i.e., whether it can
maintain and finance the workers during an extended strike. Any element o f strength
in one party is by the same token an element o f weakness in the other. ’ ’ In addition,
an element, frequently overlooked, is the conviction level o f the righteousness of
the cause. As Professor Kennedy puts it:

[A]n important form o f strength is conviction. How strongly do the union

leaders and members on one hand and the employer group on the other
believe in their respective positions ? Obviously, the most important
determinant here will be the intrinsic merits o f those positions. It is hard
for people to sustain for very long positions that are costing them heavily
when they know those positions to be weak or untenable on grounds o f
logic, evidence or equity. The parties are especially influenced by the
strength or weakness o f their own case in comparison with settlements or
tribunal awards in other disputes in their own industry and in the light o f
the general climate o f opinion in the country generally or in their own case.
The importance o f conviction as a source o f strength needs to be
emphasized because it is often overlooked by those who oppose the test
o f strength as being based on the principle o f ‘might makes right.’ The factor
o f conviction introduces a ‘right makes might’ element into the method as
well. And where other determinants o f strength are reasonably balanced
between two parties conviction can easily be decisive.'^

Structure o f Bargaining : Collective bargaining can be conducted at three

levels— plant, industry and national. In the United States it takes place at all these

" Id. at 384-85.

Supra note 8 at 117.
 T r a d e U n io n s , C ollective B a r g a in in g and T r ipa rtism 153

levels in the various industries. The National Labor Relations Board'^ has the
power and duty to decide, in contested cases, w^hat union has a majority and so
represents all the workers in any particular unit o f workers'appropriate for bargain­
ing. It holds elections by secret ballot and reaches its decisions economically,
quickly and efficiently. Frequently it also decides disputes about what are those
units appropriate for bargaining.
Industry-wide bargaining, both at regional and national level, is common in
Scandinavian countries, France, Germany, Italy, Switzerland, the United Kingdom
and other European countries.
As collective bargaining is in its initial stages in India, it is hard to say what
would be the most appropriate level for bargaining here. It depends on many fac­
tors such as the pace o f industrialisation, the means o f communication, the scope
o f industry and the development o f the trade union movement.
If the scope o f industry is limited to small units for local consumption, plant-
level bargaining would normally be the most fruitful. Eighty-five per cent o f the
agreements signed in India through 1961 were negotiated at the plant level.''* If
many enterprises in the same industry are situated in one city, industry-wide bar­
gaining would be economic and useful. An example o f this is collective bargaining
contracts in the textile industry in Bombay and Ahmedabad. If the industry is
spread over a region and the union is quite strong, the bargaining may be con­
ducted for the whole o f the region. An example o f this is the contract between the
United Planters’ Association o f South India and the Tea Workers Union. If the
activities o f an industry are spread throughout the country, nationwide bargaining
may be indicated. Examples are the contracts between the railways, post and tele-,
graph, and defence industries and their workers in the public sector; between
petroleum companies and Bata Shoe Co. and their workers in the private sector.'^
Bargaining at each level has advantages and disadvantages. In plant level
bargaining the union is responsive to the rank and file and to their problems. It
makes every effort to resolve them as quickly and effectively as it can, for the
leaders have to live with the workers. But a disadvantage is that in most o f the small
industries the unions are weak. Industry-wide bargaining has the advantage o f
getting uniform terms for the entire industry. It benefits the workers in the srhaller
firms, as they often can get the better wages and working conditions, w h ic h \
strong union can obtain. The disadvantage is that this does not always give due
weight to differences in efficiency and prosperity-of the many firms. The more
prosperous can usually pay better wages than the lesTprosperous. If the wages are

A US Govemment Agency established under the National Labor Relations Act, 1935
(Wagner Act) as amended in 1974 (Taft-Hartley Act).
Collective—A Study 9 (Monograph No. 4 : Employers’ Federation of Bombay).
Supra note 8 at 147-48.
154 L a b o u r L aw and L a b o u r R elations

put too high the weaker firms may have to retrench workers. It the wages are put too
low the workers in the stronger firms remain dissatisfied and may reject the agree­
ment. One possible technique sometimes resorted to, is to lay down general guide­
lines only, for wages and other working conditions, but to permit variations to meet
the needs o f local conditions. But this too involves some practical difficulties.
Nation-wide bargaining has some o f the same advantages as industry-wide
bargaining; in addition, it leads to better economic integration and higher living
standards. It also may mitigate divisive tendencies o f caste, community, language
and religion which exist at regional levels. The disadvantages are that nationwide
strikes sometimes may by their chain-reactions paralyse all industries and at critical
moments may jeopardies the security o f the nation. “Nation-wide bargaining may
also aggravate the evils o f labour monopolies.
As the consequences of major strikes grow more and more serious, unions and
managements come nowadays more and more to employ trained economists, stat­
isticians, accountants, and research workers to compile data on many such matters
as costs o f living, family budgets, economic conditions, movement o f wages, costs,
and prices. The data collected are analysed and used as ammunition in collective
bargaining negotiations.'^
Duration-. The durations o f collective bargaining contracts vary widely. Unions
generally favour shorter contracts, while managements favour longer ones. In the
United States many o f the contracts are for a period o f one to three or more years,
with options to renew. In the United Kingdom, “open end” contracts, which can be
renegotiated on notice at any time, are the rule. In the Scandinavian countries, one-
year contracts with renewal clauses are usual.
The position in India is not clear. A study o f 114 contracts in 1961 by the
Employers Federation of India' ^ showed that a majority of them were for one to five
years, with a strong trend in favour o f longer terms. (This may perhaps be evidence
o f control by employer or o f employers’ superior bargaining power or both?). The
long-term contract has two advantages for management over the short-term one:
(1) it imparts stability to labour-management relations, and (2) it helps in planning
production and expansion programmes based on fixed labour costs (one o f the
highest items in the budgets o f many industries).
Contents or subject matter o f collective bargaining contracts'. The subjects
for collective bargaining are determined by the parties in some countries and by law
in others. In Denmark, Germany, Italy, Norway, Sweden, Switzerland, the United
Kingdom and the United States, the parties determine their subjects freely (of
course within legal limits). In Brazil, Columbia, Equador and some other Latin Ameri­

ILO, Collective Bargaining 26-31.

Supra note 14 at 35, table 4.
 T rade U n io n s , C ollective B argaining and T ripartism 155

can countries the law specifies tiiat every contract must include clauses regulating
wages, hours, rest periods, holidays, the duration of the agreement, and procedure
for its extension. (Compare with this the requirements for standing orders in India.)
In France, every national collective contract must contain provisions on freedom o f
association, freedom o f opinion, conditions o f employment and dismissal o f em­
ployees (with particular reference to the prohibition of discrimination on grounds
o f membership in any particular union), length o f notice, and organisation o f ap­
prenticeship and training. In Canada, every contract must contain a grievance
procedure.'*
In India the selection of subjects, while it is for the parties to decide, is never­
theless rather narrowly circumscribed by law. For example, the negotiators of a
contract must always keep in mind the provisions o f the Factories Act, .1948, the
Industrial Employment (Standing Orders) Act, 1946, the Minimum WagesAct, 1948
and the Payment o f Wages Act, 1936. These deal with many subjects such as safety
precautions, health measures, amenities, conditions of employment, minimum wages
and payment o f wages. Any contract must naturally be consistent with these Acts.
The decisions o f courts, sometimes interpreting other Acts, Have also laid
down principles on such matters as how bonus must be calculated, retrenchment
must be carried out, rationalisation must be undertaken, and disciplinary proceed­
ings must be handled.
Some contracts are short and deal with a few matters, while others are elaborate
and deal with many. Usually all contracts in India will contain most or all of the
following clauses: (I) a preamble stating the positions o f the parties; (2) recognition
by the employer o f the union as sole bargaining agent and o f its right to organise
the workers; (3) recognition o f the right of management to carry on its normal
activities and meet its responsibilities; (4) wages, bonus and dearness allowance;
(5) grades, job classification and job evaluation; (6) hours o f work, holidays, leave
and overtime; (7) dismissal, discharge, termination and retirement from service in;;^
sofar as it is not covered by the company’s standing orders; (8) medical benefits,
provident fund, pension and gratuity; (9) joint machinery for the efficient and
smooth functioning o f the industry, such as a joint production committee, a joint
labour relations committee, a job evaluation committee, or a discipline, safety and
welfare committee; (10) grievance procedure; (11) no-strike clause, and an under­
taking that disputes will be settled through mutual consultation; and (12) the dura­
tion and termination o f the contract.
The signing o f the contract makes a great impression on the rank and file o f the
union. “Its formal language is the mark o f its significance and... a guarantee that the
management will carry out its pledged word. It strengthens the position of the
18
ILO, Collective Bargaining
15 6 L abour L aw and L a b o u r R elations

union in the eyes o f its members, and it provides tiie basis for a continuing and
dignified relationship between the management and the employees.
Enforcement o f agreements : The enforcement o f bargaining contracts de­
pends in some countries on the good faith o f the parties and in others, on that, plus
the law. In the United Kingdom, such contracts are called “gentlemen’s agree­
ments”. To enforce them in a court o f law, workers must rely on their individual
contracts with the employer, which may in some cases incorporate the larger agree­
ment. In a great many countries o f Europe, Latin America and Asia, the effects o f
the contracts are regulated by special legislation. They can then be enforced in a
court o f law, either by the union or by the individual worker, through an action for
damages for a breach o f the contract. Scandinavian countries, Germany, Ireland and
some Latin American countries have established special courts to enforce the
contracts on the grounds that procedure in ordinary courts is long and costly, that
delay may result in a strike and to secure a quick remedy. The actions here must
usually be brought by the unions; but in some cases individuals may be allowed to
start proceedings.^®
In India, the collective bargaining contracts can be enforced under Section 18
o f the Industrial Disputes Act, 1947, as a settlement arrived at between the workers
and the employers. The appropriate government may refer the dispute over a breach
o f contract to a labour court or to an industrial tribunal.

NOTE

Consider the following recommendations o f the National Commission on Labour:

There is a case for shift in emphasis and increasingly greater scope for and
reliance on collective bargaining. Any sudden change replacing adjudication by a
system o f collective bargaining is neither called for nor is practicable. The process
has to be gradual. A beginning has to be made in the move towards collective
bargaining by declaring that it will acquire primacy in the procedure for settling
industrial disputes.
Conditions have to be created for promotion o f collective bargaining. The
most important among them is statutory recognition o f a representative union as
the sole bargaining agent. The place which strike/lock-out should have in the
overall scheme o f industrial relations needs to be defined; collective bargaining
cannot exist without the right to strike/lockout.
See Report o f the National Commission on Labour (1969) p. xxiii.

Mary Sur, supra note 1 at 107.

ILO, Collective Bargaining 71 -72.
 T rade U n io n s , C o l l ectiv e B a r g a in in g and T ripa rtism 157

III. TRIPARTISM

From independence until 1954 when Mr. V.V. Giri resigned as Labour Minister, India’s
labour policy presented a rather schizophrenic appearance. The “Giri Approach”,
and all the official pronouncements, insisted that labour become self-reliant. The
opponents quietly preferred that it rely upon the government. A new direction in
the Central Government’s national policy replaced Mr. Giri’s struggle. This was to
rely upon “tripartism”; this became the central theme in the so-called “Nanda pe­
riod” that began in 1957.* The word means a reliance upon the advice o f the three
parties to industrial relations and disputes: the unions, the employers, and the
government. Under tripartism, these three do not decide anything, but they try to
advise about everything. Their representatives sit together, in one kind o f meeting
or another, and strive to reach consensus; they study problems, arid when they can
agree they make recommendations. O f the three, the government is the most active,
for although it decides nothing as one participant, it does take the initiative in
calling management and labour together; and sometimes it cracks the whip over
them a bit. And o f course it in nowise surrenders^although it may deprecate its
overriding powers to take decisions even without its two partners’ consent.
Ten years before 1957 tripartism, had been foreshadowed by the Truce Resolu­
tion 1947. Major difficulties that sprang from the war and from partition kept that
Resolution ineffectual, but its ideas are important because o f what happened later on.
That Truce Resolution was adopted (by an Industries Conference) in Decem­
ber 1947. That had been a year in which strikes caused the loss o f 16,562,666 man-
days o f work. The Resolution extolled friendly co-operation between labour and
management, with a fair day’s work for a fair day’s wage, and urged the settlement
o f disputes without work stop pangs. Capital was to receive its just reward, while
consumers’ interests were to be guarded by taxation. The statutory machinery was
to be used for settling disputes, but tripartite studies should be made upon what
constitutes fair wages and working conditions; works committees should settle
day-to-day disputes; and better workers’ housing should be built at the shared
expense o f all three interests.
Tripartism flowered ten years later with the beginning o f the Nanda period. Its
chief instruments have been the annual Indian Labour Conference, and th^perma-.
nent Standing Labour Committee, both fully tripartite in structure.
These annual conferences had begun as early as 1940 and had slowly gained
in importance. The meetings had, from time to time, advocated such proposals as,
for example, workers’ participation in management; workers’ education; works
committees; arid minimum wage legislation.

Mr. Gulzarilal Nanda was Labour Minister from 1954 to 1957. This skitch of tripartism
relies heavily on Van D. Kennedy, Unions Employers, a n dG overnnw nt 49-60 {\966).
15 8 L a b o u r L aw and L a b o u r R elations

And a veritable multitude o f others. There is no room here to do more than

mention a very few o f the very many causes which the various conferences, and the
committee, advocated.
The Fifteenth and Sixteenth Conferences, in 1957 and 1958, were the most
momentous. They, with the interim help o f the Sixteenth Standing Committee, adopted
the Code o f Discipline in Industry, 1958. This famous document— the keystone o f
the tripartite arch— underscored the rights and responsibilities o f labour and man­
agement, generally and under all agieements, and the need to educate management
personnel and workers about those rights and responsibilities. It pledged the par­
ties to avoid strikes and lockouts without notice, and to eschew unilateral actions;
and to rely on settlement by discussion, by voluntary arbitration, or by the law’s
machinery. It pledged them also to avoid coercion and victimisation; to avoid par­
tial strikes and lockouts; to establish and follow grievance procedures; and to post
information about the Code’s provisions for all to read.
In addition, managements and unions each agreed to a list o f detailed prom­
ises, designed to implement these more general undertakings, such, for example, as
for management to agree not to increase work-loads without consent, to discipline
any o f its officers who provoke and precipitate breaches o f discipline; and to
recognize the largest union whenever one represented 15 per cent o f the workers in
any establishment or 25 per cent o f those in any industry in the area.* Unions
agreed to abjure duress; rowdy demonstrations; union activities in working time;
neglect o f duty or injuries to company property; interference with normal work; and
insubordination. They also agreed to comply with awards, and to take action against
office-bearers and members for any violations of the spirit o f the code.
In 1957 and 1958, too, the Conferences and the Standing Labour Committee
promulgated a model grievance machinery and procedure, providing for negotia­
tions at several stages. They also promulgated a Code o f Conduct, 1958, approved
by the four great federations, to restrain improper competition by one union with
another; to forbid coercion and dual unionism; to ban favoritism on account o f
religion or caste; and to require democratic procedures within the unions them­
selves.
__ O f all these important documents the Code o f Discipline was the most impor­
tant. Its importance lay not so much in its general acceptance and its broad cover­
age as in its continuing influence— sustained as this has been by some sincere
efforts at implementation.
The Code’s coverage is sweeping. It applies both to the public and to the
private sectors (with the exceptions, noted in the Indian Labour Year Book 1964,

If more than one union qualified, management should recognize the largest. An area-
industry union should yield to an establishment union in the handling of local disputes.
Provision was made for verification of union membership
 T rade U n io n s , C o l lective B a r g a in in g and T ripa rtism 159

118-19, o f the Ministry o f Railways and the Ministry o f Defence). As to its accep­
tance, the four major labour federations, INTUC, AITUC, HMS, and UTUC each
acceded to it; so also did the Employers’ Federation o f India, the All India
Organisation of Industrial Employers, and the All India Manufacturers’ Organisation.
The Indian Labour Year Book 1964 says, at page 118;
The 16th Session o f the Standing Labour Committee also recommended
the setting up o f special machineries at the centre as w ell as in the States
to ensure proper implementation o f labour awards, agreements and the
Code o f Discipline. At the Centre the machinery consists o f an Implemen­
tation and Evaluation Division and a Tripartite Implementation and Evalu­
ation Committee consisting o f 4 representatives each o f the Central Em­
ployers’ and Workers’ Organisation with the Union Labour Minister as
Chairman.
The Year Book mentions the Code o f Conduct (inter-union) and the Industrial
Truce Resolution— probably the later one o f 1962— as other accords, which the
Division is charged to enforce. It is also to try to nip industrial disputes in the bud,
to fix responsibilities for major disputes, strikes, and lockouts, and to evaluate
labour laws and policies, and labour awards. The state governments have set up
similar units and similar committees for implementation.
Also under the Code o f Discipline, screening committees have been estab­
lished by the Central employers’ and workers’ organisations to eliminate frivolous
appeals in industrial disputes. In 1963 and through June 1964, such screening by
management organisations allowed 40 appeals to be taken out o f 44 cases screened,
and successfully discouraged 4; such screening by workers’ organisations in that
period allowed 18 appeals, out o f 54 cases, but successflilly discouraged 36.
There is also some machinery for screening appeals by undertakings in the
public sector.
Efforts to promote settlement o f cases pending in the Supreme Court or in the
High Courts succeeded, during the period 1958-64, in 26 cases out o f 58. {Id. at .119-
20 ).
The Central Division received in 1964,1710 complaints o f breaches o f the C ode'
o f Discipline and Truce Resolution. Of these, 168 were for its information only. Nine
per cent o f the rest o f the complaints were found to be not well founded; 37 per cent
were adjusted or resulted in warnings: and 54 per cent were being investigated at
the end o f the year.
Although the Year Book says nothing about implementation o f the Code o f
Discipline at the state level, we are informed o f work by some active tripartite
committees. But although our informant was enthusiastic the extent and effective­
ness o f these efforts are not really known.
160 L a b o u r L aw and L a b o u r R elations

Consider against this background the following comments voicing friendly

doubts:
The Code o f Discipline is the principal instrument and symbol o f Indian
labour relations policy as it has emerged from the reformulation given it
during the Nanda Period.... As the Third Plan put it, ‘a new approach was
introduced to ...give a more positive orientation to industrial relations
based on moral rather than legal sanctions.” The question is; How effec­
tive are moral sanctions in preventing unfair labour practices? Although it
would be hard to prove, it is likely that the Code has had some effect. The
extended discussions and publicity that accompanied adoption o f the
Code and that have attended complaints and debates over its violation
and enforcement ever since, have served to crystallize and define the
concept o f unfair practices and put them in an unfavorable light. When
employer and union organizations pledged themselves to comply... most
o f them presumably acquired some sense o f moral responsibility by the
act. These influences have probably been given their greatest impact by
the... Evaluation and Implementation machinery in the Central Labour
Ministry and in some o f the states. This machinery does not have power
to prosecute and penalize violators ... but it can investigate, make public
disclosure and in effect, give public reprimands and this must have some
deterring effect on unfair practices. However, is the effectiveness o f the
Code at all equal to the seriousness of the problems at which it is aimed ?
On the strength o f our knowledge o f the realities o f individual and group
behaviour we can be almost certain that it is not. Strong interests prevail
over moral sanctions in governing human conduct if the sanctions are not
supported by deeply held moral convictions...^'
Tripartism is an approach which stresses the identity o f interests between
capital and labour: their partnership. This ideal doubtless draws sustenance from
Gandhiji’s approach to industrial disputes. Consider this passage from the draft of
the Fourth Plan:
Labour Legislation.... and agreements arrived at jointly between represen­
tatives o f workers and employers and the Government proceed from two
basic concepts. Firstly, the relationship between workers and employers
is one o f partnership in the maintenance o f production and the building up
o f the national economy. Secondly, the community as a whole as well as
individual employers are under obligation to protect the well being of
workers and to secure to them their due share in the gains o f economic
development.^^

Van D. Kennedy, Union, Employers and Government 74 (1966).

Fourth Five-year Plan — A Draft Outline 386 (1966).