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Industrial Jurisprudence

D
uring the twentieth century a new branch of jurisprudence known as
Industrial Jurisprudence has developed in our country. Industrial
jurisprudence is a development of mainly post-independence period
although its birth may be traced back to the industrial revolution. The growth of
industrial jurisprudence can significantly be noticed not only from increase in
labour and industrial legislations but also from a large number of industrial law
matters decided by the Supreme Court and High Courts.

▪ It affects directly a considerable population of our country consisting of

industrialists, workmen and their families.
▪ This branch of law modified the traditional law relating to master and
servant and had cut down the old theory of laissez faire based upon the
freedom of contract in the larger interest of the society
▪ The traditional right of an employer to hire and fire his workmen at his will
has been subjected to many restraints.
▪ Similarly there is change in the concept of master and servant. One who
invests capital is no more a master and one who puts in labour is no more a
servant.
▪ They are employer and employees, the former may hire the latter but he can
no more fire them at his will.
▪ Even the right of labour participation in the management has been given
legislative recognition to the utter despair of the capitalist.
▪ The industrial society all over the world has been moving during the present
century from contract to status and this status is a politico-socio-economic
justice status.
▪ What were the factors that lead to this departure from the old theories of the
law of contract, and the law of Master and Servant?
▪ Industrialization in India, as in other countries, brought with it some new
socio-economic problems.
▪ Those who control the industry have a natural tendency of multiplying their
wealth and if this tendency is not checked the rich grows on richer and the
poor becomes poorer day by day.
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▪ The gap between the rich and the poor ultimately grows on to this extent that
it develops into two distinct classes in any industrial society, a few of whom
are haves and others are have-nots, the latter exploited.
▪ This realization was closely followed by a period of industrial unrest leading
to strikes and lock-outs.
▪ Democratic ideas have also grown simultaneously with the growth of
industrialization in our country.

Trade Unionism

Labour Philosophy-United we stand, divided we fall.

History of the Trade Union Movement in India

T
he labour movement in India is about fourteen decades old, since it may be
trade from 1860s. early years of movement were generally led by
philanthropists and social reformers, who organized workers and protected
them against inhuman working conditions.

The development during the span of about one hundred and forty years may be
considered broadly under the following six periods.

1. Pre-1918
2. 1918-1924
3. 1925-1934
4. 1935-1938
5. 1939-1946 and
6. 1947 and since

1. Pre-1918 Period
▪ The earliest sign of labour agitation in India was a movement in Bengal in
1860 led by Dinbandhu Mitra, a dramatist and social reformer of Bengal
followed by some of journalists to protest against the hardship of the
cultivators and also the plantation workers.
▪ In 1875 Sarobji Shapuri in Bombay made a protest against poor working
conditions of workers at that time.
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▪ The first Factory Commission was, therefore, appointed in 1875 and as a

result the Factories Act, 1881 was enacted. This Act was, however,
inadequate to meet the evil of child labour.
▪ In 1889, in Bombay, workers of Spinning and Weaving Mills demanded
Sunday as holiday, regularity in the payment of wages and adequate
compensation in case of accident.
▪ In spite of these agitations no material change could be brought and,
therefore, another representation was made to the government in 1890.
▪ Several labour associations were formed after 1890.
▪ The post-1890 period was also important for the reason that several strikes
occurred during this period.
▪ There were also strikes in jute industries in Calcutta in 1896. In 1897, after
plague epidemic, the mill workers in Bombay went on strike for payment of
daily wages instead of monthly payment of wages.

2. 1918-1924 Period

The period 1918-1924 can perhaps be best described as the era of formation of
modern trade unionism. This period witnessed the formation of a large number of
trade unions.

Important among these were Madras Labour Union, Ahmedabad Textile Labour
Association. Indian Seamen’s Union, Calcutta Clerk’s Union, and All India Postal
and RMS Association. One of the significant features of this period was that
the All India Trade Union Congress was started in 1920.

3. 1925-1934 period

This period witnessed a split in AITUC, namely, leftist and rightist. Later in 1929
awing of AITUC, namely, the All India Trade Union Federation was formed. The
main cause of the Communist influence was the economic hardship of workers.

This period has also shown remarkable decrease in the intensity of industrial
conflict. At least two factors were responsible for it. First, the Trade Dispute Act
was passed in 1929 prohibiting strikes and Lockouts. Second the failure of strikes
and lockouts resulted in industrial strife.
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Another significant feature of this period was the passing of the Trade Unions Act,
1926 and the Trade Disputes Act 1929. The former Act provides for registration of
trade unions and affords legal protection to intervene in trade disputes. The later
Act provided for ad hoc Conciliation Board and Court of Enquiry for the
settlement of trade disputes. The Act as already observed, prohibited strikes and
lockouts in public utility services and general strikes affecting community as a
whole.

4. 1935-1938 Period

During this period unity was forced in trade unions. This led to revival of the trade
union activity. In 1935 the All India Red Trade Union Congress merged itself with
the AITUC. Again, in 1938 an agreement was arrived at between All India
National Trade Union Federation and AITUC and consequently NTUC affiliated
itself with AITUC.

The year 1938 saw the most important state enactment like the Bombay Industrial
Disputes Act, 1938.

5. 1939-1946 Period

World War II like the World War I brought chaos in industrial relations. Several
reasons may be accounted for the industrial unrest and increased trade union
activity. First, the rise in prices could not keep pace with the increase in wages.
Second, there was a split in AIIUC due to nationalist movement. Third, the post-
World War II witnessed retrenchment and therefore, faced with the problem of
unemployment. During this period the membership of registered trade unions
increased from 667 in 1939-40 to 1087 in 1945-46. Further, the number of women
workers in the registered trade unions increased from 18,612 in 1939-40 to 38,570
in 1945-46. Moreover the period witnessed a large number of strikes.

During the emergency the Defence of India Rules, 1942 remained in force.

In 1946 another enactment of great significance in labour relations, namely, the

Industrial Employment (Standing Orders) Act, 1946 was passed with a view to
bring uniformity in the condition of employment of workmen in industrial
establishment and thereby to minimize industrial conflicts. Another important
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enactment at state level was the Bombay Industrial Relations Act, 1946. The Act
makes elaborate provisions for the recognition of trade unions and rights thereof.

6. 1947 and since

In 1948 the Socialist Party formed an organization known as Hind Mazdoor sabha.

The same year also witnessed the passing of the industrial Disputes Act 1947 and
the Trade Unions (Amendment) Act, 1947; the former Act introduced the
adjudication system on an All India level. It prohibits strikes and lockouts without
giving fourteen days prior notice and during the pendency of conciliation
proceeding before a conciliation officer in public utility services. The period also
saw the amendments in the Trade Unions Act in 1960.

The Unity Move

In 1981 once again unity was shown in the trade unions to protest the promulgation
of the Essential Services Maintenance Ordinance, 1981 and also the Bill in that
regard in the Parliament. A Year later in 1982 the Trade Unions (Amendment) bill,
was introduced in Lok Sabha. The Bill proposed to make the following
amendments in the Act, namely.

i. To reduce multiplicity of unions, it is proposed to change the existing

provision of enabling any seven workmen to form a trade union by
providing for a minimum qualifying membership of 10% of work,en
(subject to a minimum of ten) employed in the establishment of industry
where the Trade Union is proposed to function or hundred workmen,
whichever is less, for the registration of trade unions.
ii. There is at present no machinery or procedure for the resolution of trade
union disputes arising from inter-union and intra-union rivalries. It is
proposed to define the expression “trade union dispute” and to make
provision for resolving such disputes through voluntary arbitration, or by
empowering the appropriate Government and the parties to the dispute to
refer it to the Registrar of Trade Unions for adjudication.
iii. The Act does not lay down any time-limit for registration of trade unions.
It is proposed to provide for a period of sixty days for the registration of
trade unions by the Registrar after all the formalities have been
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completed by the trade unions. It is also proposed to provide that a trade

union whose certificate of registration has been cancelled would be
eligible for re-registration only after the expiry of a period of six months
from the date of cancellation of registration, subject to certain conditions
being fulfilled by the trade union.
iv. Under the existing provisions of the Act, 50% of the office bearers in the
executive of a registered trade union shall be persons actually engaged or
employed in an industry with which the trade union is connected. It is
proposed to enhance this limit to 75% so as to promote development of
internal leadership.
v. It is proposed to empower the Registrar of Trade Unions to verify the
membership of registered unions and connected matters and report the
matter to the State and Central Governments.
vi. Penalties specified din the Act for the contravention of its provisions are
proposed to be enhanced.

However the aforesaid Bill lapsed. Six years later the Trade Unions and the
Industrial Disputes (Amendment) Bill, 1988 was introduced in the Rajya Sabha on
13.5.88 but it has not yet received the colour of the Act.

The Government of India had in 1997 approved certain amendments to the Trade
Unions Act, 1926. The objective of these amendments, is to ensure organized
growth of trade unions and reduce multiplicity of trade unions. The Trade Union
Amendment Bill, 1997 was to be introduced in the Rajya Sabha in the winter
session of the Parliament in the year 1997, but due to various reasons, it was not
introduced.
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Trade Union Act 1926

T
rade Unions in India are governed by the Trade Union Act 1926, which is
the main legislation that provides various rules, regulations and controlling
mechanism related to Trade-Unions. The Act to provide for Registration of
Trade Unions and certain respects to define the law relating to the registered Trade
Unions.

Definitions

Trade Dispute

The expression Trade Dispute has been defined in the first part of section 2(g) of
this Act in relation to parties and the nature of the dispute. Trade Dispute means
any dispute-

1. (a) between employer and workmen; or

(b) between workmen and workmen; or
(c) between employers and employers

2. Any such dispute must be connected with-

I. the employment; or
II. non-employment; pr
III. the terms of employment; or
IV. the conditions of labour, or any person.

The definition of Trade Dispute in this Act is almost identical with the definition of
Industrial Dispute in the Industrial Disputes Act. For a trade dispute it is necessary
that there must be some difference between the parties as aforesaid, that is, a
demand from one party and refusal to accept those demands by the other party.
There can be no dispute by the unilateral action of one party; which means the
demand must be communicated to the other party. No trade dispute can be said to
have arisen unless an opportunity to the other party is given to express any view or
indicate any positive or negative relation thereto.

Further the dispute must be real and substantial between the parties to such dispute.
Unless parties to the dispute have a direct or substantial interest in the
employment, non-employment, or conditions of labour of the person regarding
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whom the dispute is raised, it cannot be said to be a real and substantial dispute
between them. Where the workmen of a tea estate raised a dispute regarding the
termination of service of a person belonging altogether to different category from
them, the Supreme Court held that there was no industrial dispute within the
meaning of law as the appellant workman had no direct or substantial interest in
his employment or non-employment even if he was a member of the trade union.
Where the workmen of an oil company made a demand to treat the laborers
employed through contractors as regular workmen of the company, the Supreme
Court held that the matter is certainly of some importance to the workmen and in
the circumstances it could not be said that the dispute was not a real and substantial
dispute between the company and its regular workmen.

Individual Dispute and Trade Dispute-as observed by the Supreme Court, an

individual dispute cannot per se be a trade dispute unless the cause is sponsored by
a Trade Union or by a substantial number of workmen. It is not necessary that it
should be supported by all or majori9ty of the workmen, but it should have the
support of substantial section of workmen but the substantiality of their number
taking up the cause, which is to be considered. It does not matter that the dispute is
not raised by a majority of the workmen. An industrial dispute may be raised by a
group of workmen who may not represent all or even the majority of workmen,
and if the dispute is referred to the Industrial Tribunal for adjudication and an
award is made, it binds not only the parties to the dispute, or other parties
summoned to appear, but all persons who were employed in the establishment, or
who would be employed in future are also governed by the award.

Employment and Non-employment-The use of the expression employment or

non-employment in the Act makes it clear that the dispute may be connected with
the workman in employment or out of employment. That means a dispute
connected with a dismissed, discharged, removed or retrenched employee is a trade
dispute. It has been observed by the Federal Court that reinstatement is connected
with non-employment and is, therefore, within the words of the definition. So also,
a claim for compensation for wrongful dismissal being connected with the question
of non-employment is a trade dispute.

Workman-The later part of section 2(g) of this Act defines workmen as follows—
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Workmen means all persons employed in trade or industry whether or not in the
employment of the employer with whom the trade dispute arises. This definition
has two ingredients;

1. workmen means all persons employed in trade or industry

2. it is immaterial that the persons employed in a trade or industry are not in the
employment of the employer with whom the trade dispute arises.

Industry- to be an activity systematically or habitually undertaken for the

production or distribution of goods or for rendering of material services to the
community at large or part of such community with the held of employees. It has
further been observed that industrial activity involves the co-operation of the
employer and the employees and its object is the satisfaction of material human
needs.

The definition of workmen embraces in it a dismissed, discharged, removed or

retrenched employee also. Further, the workmen must be employed in trade or
industry, whether under the same employer with whom the dispute arises or under
a different employer connected with the same or similar industry.

2(h) Trade Union

Section 2(h) defines Trade Union which can be analyzed into the following
ingredients;

1. any combination whether temporary or permanent;

2. the combination should have been formed for the purposes of ;
a. regulation the relations between
i. workmen and employers; or
ii. workmen and workmen; or
iii. employers and employers; or
b. imposing restrictive conditions on the conduct of any trade or business. But
this Act shall not affect;
i. any agreement between partners as to their business; or
ii. any agreement between an employer and those employed by him as to
such employment;
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iii. any agreement in consideration of the sale of the goodwill of a

business or instruction in any profession, trade or handicraft.

REGISTRATION OF TRADE UNIONS

3. Appointment of Registrars.—(1) The appropriate Government shall appoint a
person to be the Registrar of Trade Unions for each State.
(2) The appropriate Government may appoint as many Additional and Deputy
Registrars of Trade Unions as it thinks fit for the purpose of exercising and
discharging, under the superintendence and direction of the Registrar, such powers
and functions of the Registrar under this Act as it may, by order, specify and define
the local limits within which any such Additional or Deputy Registrar shall
exercise and discharge the powers and functions so specified.
(3) Subject to the provisions of any order under sub-section (2), where an
Additional or Deputy Registrar exercises and discharges the powers and functions
of a Registrar in an area within which the registered office of a Trade Union is
situated, the Additional or Deputy Registrar shall be deemed to be the Registrar in
relation to the Trade Union for the purposes of this Act.]
4. Mode of registration.—(1)] Any seven or more members of a Trade Union
may, by subscribing their names to the rules of the Trade Union and by otherwise
complying with the provisions of this Act with respect to registration, apply for
registration of the Trade Union under this Act.
(2) Where an application has been made under sub-section (1) for the registration
of a Trade Union, such application shall not be deemed to have become invalid
merely by reason of the fact that, at any time after the date of the application, but
before the registration of the Trade Union, some of the applicants, but not
exceeding half of the total number of persons who made the application, have
ceased to be members of the Trade Union or have given notice in writing to the
Registrar dissociating themselves from the applications.]
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5. Application for registration.—(1) Every application for registration of a Trade

Union shall be made to the Registrar, and shall be accompanied by a copy of the
rules of the Trade Union and a statement of the following particular ’s, namely:—
(a) the names, occupations and addresses of the members making the application;
(b) the name of the Trade Union and the address of its head office; and
(c) the titles, names, ages, addresses and occupations of the [office-bearers] of the
Trade Union.
(2) Where a Trade Union has been in existence for more than one year before the
making of an application for its registration, there shall be delivered to the
Registrar, together with the application, a general statement of the assets and
liabilities of the Trade Union prepared in such form and containing such particulars
as may be prescribed.
6. Provisions to be contained in the rules of a Trade Union.—A Trade Union
shall not be entitled to registration under this Act, unless the executive thereof is
constituted in accordance with the provisions of this Act, and the rules thereof
provide for the following matters, namely:—
(a) the name of the Trade Union;
(b) the whole of the objects for which the Trade Union has been established;
(c) the whole of the purposes for which the general funds of the Trade Union shall
be applicable, all of which purposes shall be purposes to which such funds are
lawfully applicable under this Act;
(d) the maintenance of a list of the members of the Trade Union and adequate
facilities for the inspection thereof by the [office-bearers] and members of the
Trade Union;
(e) the admission of ordinary members who shall be persons actually engaged or
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employed in an industry with which the Trade Union is connected, and also the
admission of the number of honorary or temporary members as [office-bearers]
required under section 22 to form the executive of the Trade Union;
(ee) the payment of a subscription by members of the Trade Union which shall be
not less than twenty-five naye paise per month per member;]
(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 imposed on the
members;
(g) the manner in which the rules shall be amended, varied or rescinded;
(h) the manner in which the members of the executive and the other [office-
bearers] of the Trade Union shall be appointed and removed;
(i) the safe custody of the funds of the Trade Union, an annual audit, in such
manner as may be prescribed, of the accounts thereof, and adequate facilities for
the inspection of the account books by the [office-bearers] and members of the
Trade Union; and
(j) the manner in which the Trade Union may be dissolved.
7. Power to call for further particulars and to require alteration of name .—
(1) The Registrar may call for further information for the purpose of satisfying
himself that any application complies with the provisions of section 5, or that the
Trade Union is entitled to registration under section 6, and may refuse to register
the Trade Union until such information is supplied.
(2) If the name under which a Trade Union is proposed to be registered is identical
with that by which any other existing Trade Union has been registered or, in the
opinion of the Registrar, so nearly resembles such name as to be likely to deceive
the public or the members of either Trade Union, the Registrar shall require the
persons applying for registration to alter the name of the Trade Union stated in the
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application, and shall refuse to register the Union until such alteration has been
made.
8. Registration.—The Registrar, on being satisfied that the Trade Union has
complied with all the requirements of this Act in regard to registration, shall
register the Trade Union by entering in a register, to be maintained in such form as
may be prescribed, the particulars relating to the Trade Union contained in the
statement accompanying the application for registration.
9. Certificate of registration.—The Registrar, on registering a Trade Union under
section 8, shall issue a certificate of registration in the prescribed form which shall
be conclusive evidence that the Trade Union has been duly registered under this
Act.
10. Cancellation of registration.—A certificate of registration of a Trade Union
may be withdrawn or cancelled by the Registrar—
(a) on the application of the Trade Union to be verified in such manner as may be
prescribed, or
(b) if the Registrar is satisfied that the certificate has been obtained by fraud or
mistake, or that the Trade Union has ceased to exist or has willfully and after
notice from the Registrar contravened any provision of this Act or allowed any rule
to continue in force which is inconsistent with any such provision, or has rescinded
any rule providing for any matter provision for which is required by section 6:
Provided that not less than two months’ previous notice in writing specifying the
ground on which it is proposed to withdraw or cancel the certificate shall be given
by the Registrar to the Trade Union before the certificate is withdrawn or cancelled
otherwise than on the application of the Trade Union.
11. Appeal.—(1) Any person aggrieved by any refusal of the Registrar to register a
Trade Union or by the withdrawal or cancellation of a certificate of registration
may, within such period as may be prescribed, appeal,—
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(a) where the head office of the Trade Union is situated within the limits of a
Presidency-town to the High Court, or
(b) where the head office is situated in any other area, to such Court, not inferior to
the Court of an additional or assistant Judge of a principal Civil Court of original
jurisdiction, as the [appropriate Government] may appoint in this behalf for that
area.
(2) The appellate Court may dismiss the appeal, or pass an order directing the
Registrar to register the Union and to issue a certificate of registration under the
provisions of section 9 or setting aside the order for withdrawal or cancellation of
the certificate, as the case may be, and the Registrar shall comply with such order.
(3) For the purpose of an appeal under sub-section (1) an appellate Court shall, so
far as may be, follow the same procedure and have the same powers as it follows
and has when trying a suit under the Code of Civil Procedure, 1908 (5 of 1908),
and may direct by whom the whole or any part of the costs of the appeal shall be
paid, and such costs shall be recovered as if they had been awarded in a suit under
the said Code.
(4) In the event of the dismissal of an appeal by any Court appointed under clause
(b) of sub-section (1), the person aggrieved shall have a right of appeal to the High
Court, and the High Court shall, for the purpose, of such appeal, have all the
powers of an appellate Court under sub-sections (2) and (3), and the provisions of
those sub-sections shall apply accordingly.]
12. Registered office.—All communications and notices to a registered Trade
Union may be addressed to its registered office. Notice of any change in the
address of the head office shall be given within fourteen days of such change to the
Registrar in writing, and the changed address shall be recorded in the register
referred to in section 8.
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13. Incorporation of registered Trade Unions.—Every registered Trade Union

shall be a corporate by the name under which it is registered, and shall have
perpetual succession and a body common seal with power to acquire and hold both
movable and immovable property and to contract, and shall by the said name sue
and be sued.
14. Certain Acts not to apply to registered Trade Unions.—The following Acts,
namely:—
(a) The Societies Registration Act, 1860 (21 of 1860),
(b) The Co-operative Societies Act, 1912 (2 of 1912),
(e) The Companies Act, 1956 (1 of 1956),]
shall not apply to any registered Trade Union, and the registration of any such
Trade Union under any such Act shall be void.
RIGHTS AND LIABILITIES OF REGISTERED TRADE UNIONS
Funds of Trade Union
Section 15-Objects on which general funds may be spent-section 15 of the Act is in
the form of general restraint against expenditure of the general funds of a Trade
Union. The general funds of a registered Trade Union shall not be spent on any
other objects than the following namely;
a. the payment of salaries, allowances and expenses to office bearers of the
Trade Union
b. the payment of expenses for the administration of the Trade Union including
audit of the accounts of the general funds of the Trade Union.
c. The prosecution or defense of any legal proceeding to which the Trade
Union or any member thereof is a party.
d. The conduct of the trade disputes on behalf of the trade Union or any
member thereof.
e. The compensation of members for loss arising out of trade disputes
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f. The allowances to members or their dependants on account of death, old

age, sickness accidents or unemployment of such members;
g. The issue of, or the undertaking of liability under policies of assurance on
the lives of members, or under policies insuring members against sickness,
accident or unemployment;
h. The provision of educational, social or religious benefits for members
(including the payment for the expenses of general or religious ceremonies
for deceased members) or for the dependants of members;
i. The upkeep of a periodical published mainly for the purpose of discussing
questions affecting employers or workmen as such;
j. The payment in furtherance of any of the object on which the general funds
of Trade Union may be spent, of contributions to any cause intended to
benefit workmen in general provided that the expenditure in respect of such
contributions in any financial year shall not at any time during that year be
in excess of one-fourth of the combined total of the gross income which has
up to that time accrued to the general funds of the trade Union during that
year and of the balance at the credit of those funds at the commencement of
that year; and
k. Subject to any conditions contained in the notification, any other object
notified by the appropriate government in the official Gazette.
Thus it will be illegal to spend the union funds for any purpose other than those
stated above. It is illegal to devote union funds in support of an illegal strike or
lockout and a union can be restrained by injunction from applying its funds for any
unlawful purpose, because such an expenditure shall be ultra vires of the Act.
In Mario Raposo v. H.M. Bhandarkar and others
The petitioner as well as the respondents were members of a union called V.C.O.
Bank Employees Association Nagpur. The office bearers of the union purchased
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shares of U.T.I in their individual names out of the Union General Fund. It was
held that purchase of shares cannot be termed as investment under section 15 of the
Act but is a speculative activity. Section 15 of the Act does not allow to spend the
fund of the Union on speculative activity.
Section 16-Constitution of a separate fund for political purposes
1. A trade union can have a civic or political objects-not inconsistent with its
objects.
2. To pursue such objects it can raise separate funds.
3. No expenditure for political purposes out of the general fund is permitted.
4. The interests on investments, which constitute the political fund, will belong
to that fund.
Section 16(2) declares the following as civic and political objects
a. The payments of any expenses for election as a member of any legislative
body or of any local authority. (all expenses from the stage of preparation of
election to after election)
b. The holding of any meeting or the distribution of any literature or
documents. (whether the nature of literature or document is political or not)
(any expenses incurred on a journal or newspaper)
c. Maintenance of any person who is member of any legislative body or local
authority (it is to maintain not to support the candidates-housing, clothing,
payment of allowances etc)
d. The registration of electors or the selection of a candidate for any legislative
body or local authority (covers an expenditure on issue of notices, circulars
and posters with a view to canvass registration of electors)
e. The holding of political meetings of any kind. (includes the general public)
It has to be borne in mind that no member shall be compelled to contribute to the
political fund.
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Any member who does not contribute to the political fund of the union shall not be
excluded from any benefits. No-discrimination-no disabilities.
Section 17-Criminal conspiracy in Trade Disputes-Immunity from criminal
conspiracy under section 120-B committed by an office bearer or member.
The immunity is available only in respect of agreements-furthering any legitimate
object.
If the agreement is an agreement to do an act which is an offence, no immunity can
be claimed.
If any act is done in furtherance of a trade dispute is not punishable. Such as to
declare strike.
In West India Steel Company Ltd v. Azeez
A trade Union leader obstructed work in the factory for five hours protesting
against deputation of workmen to work in another section.
It was held that a worker inside the factory is bound to obey the reasonable
instructions given by his superiors and carryout the duties assigned to him.
The leader of the trade union does not have any immunity in this regard.
A leader has no right in law to share managerial powers and he cannot dictate.
18. Immunity from civil suit in certain cases.—(1) No suit or other legal
proceeding shall be maintainable in any Civil Court against any registered Trade
Union or any 1[office-bearer] or member thereof in respect of any act done in
contemplation or furtherance of a trade dispute to which a member of 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 in interference with the trade, business
or employment of some other person or with the right of some other person to
dispose of his capital or of his labour as he wills.
(2) A registered Trade Union shall not be liable in any suit or other legal
proceeding in any Civil Court in respect of any tortious act done in contemplation
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or furtherance of a trade dispute by an agent of the Trade Union if it is proved that

such person acted without the knowledge of, or contrary to express instructions
given by, the executive of the Trade Union.
19. Enforceability of agreements.—Notwithstanding anything contained in any
other law for the time being in force, an agreement between the members of a
registered Trade Union shall not be void or voidable merely by reason of the fact
that any of the objects of the agreement are in restraint of trade:
Provided that nothing in this section shall enable any Civil Court to entertain any
legal proceeding instituted for the express purpose of enforcing or recovering
damages for the breach of any agreement concerning the conditions on which any
members of a Trade Union shall or shall not sell their goods, transact business,
work, employ or be employed.
20. Right to inspect books of Trade Union.—The account books of a registered
Trade Union and the list of members thereof shall be open to inspection by an
[office-bearer] or member of the Trade Union at such times as may be provided for
in the rules of the Trade Union.
21. Rights of minors to membership of Trade Unions.—Any person who has
attained the age of fifteen years may be a member of a registered Trade Union
subject to any rules of the Trade Union to the contrary, and may, subject as
aforesaid, enjoy all the rights of a member and execute all instruments and give all
acquittances necessary to be executed or given under the rules.
21A. Disqualifications of office-bearers of Trade Unions.—(1) A person shall
be disqualified for being chosen as, and for being, a member of the executive or
any other office-bearer of a registered Trade Union if—
(i) he has not attained the age of eighteen years;
 20

(ii) he has been convicted by a Court in India of any offence involving moral
turpitude and sentenced to imprisonment, unless a period of five years has elapsed
since his release.
(2) Any member of the executive or other office-bearer of a registered Trade Union
who, before the commencement of the Indian Trade Unions (Amendment) Act,
1964 (38 of 1964), has been convicted of any offence involving moral turpitude
and sentenced to imprisonment, shall on the date of such commencement cease to
be such member or office-bearer unless a period of five years has elapsed since his
release before that date.
(3) In its application to the State of Jammu and Kashmir, reference in sub-section
(2) to the commencement of the Indian Trade Unions (Amendment) Act, 1964 (38
of 1964), shall be construed as reference to the commencement of this Act in the
said State.]
22. Proportion of office-bearers to be connected with the industry.—Not less
than one-half of the total number of the 1 [office-bearers] of every registered Trade
Union shall be persons actually engaged or employed in an industry with which the
Trade Union is connected:
Provided that the [appropriate Government] may, by special or general order,
declare that the provisions of this section shall not apply to any Trade Union or
class of Trade Unions specified in the order.
23. Change of name.—Any registered Trade Union may, with the consent of not
less than two-thirds of the total number of its members and subject to the
provisions of section 25, change its name.
Section-24-Amalgamation of Trade Unions
Any two or more registered trade unions may become amalgamated together as
one trade union with or without dissolution or division of funds of such Trade
Unions.
 21

But to support any amalgamation the votes of at least one-half of the members of
each and every such trade union entitle to vote must be recorded and also that at
least sixty percent of the votes recorded must be in favour of the proposal of
amalgamation.
Section 25 of the Act –notice shall be given to the registrar signed by secretary and
seven members of trade union.
The registrar if he satisfied the provisions of this Act in respect of amalgamation
and the provisions of registration under section 6, register the TU under section 8.
The amalgamation shall have the effect from the date of registration.
Section 25-Notice of Change of name or amalgamation-Notice in writing singed
by the secretary and 7 members, shall be sent to the registrar.
If the proposed name is identical then the registrar shall refuse to register the name.
Section 26(1) Effect of change of name-the Change in the name of a registrered
TU shall not affect any rights or obligations. Any legal proceeding might have
been continued or commenced by or against a TU by its former name may be
continued or commenced by or against its new name.
Section-26(2)-Effect of Amalgamation-an amalgamation of two or more
registered TU shall not prejudice any right of any of such TU. An amalgamation
shall have effect only after it has been registered. The amalgamation may be
declared invalid on the ground that the votes of 50 percent of the members had not
been recorded.
Section-27-Dissolution-Section 27 of the Act provides that when a registered TU
is dissolved, notice of the dissolution, notice of the dissolution signed by, within 14
days of the dissolution, be sent to the registrar.
If it is satisfied the registrar shall register the notice of dissolution.
The dissolution of a registered TU shall have effect after registration of the notice.
 22

Where the dissolution of a registered TU has been registered and the rules of a TU
do not provide for the distribution of funds of the TU on dissolution, the Registrar
shall divide the funds amongst the members. Finally its left to the court.
Recognition of Trade Unions
Trade Unions are the group’s set-up with the aim of trying to create fairness and
job security in a workplace. A trade union is an organization of workers who have
banded together to achieve common goals in key areas such as wages, hours, and
working conditions. Basically a trade union bargains with the employer on behalf
of union members and negotiates with employers. Freedom of association has been
the corner stone of society. This freedom finds its expression in a democratic form
of government. Trade unionism has been a movement launched against the
concentration of economic power in the hands of a few individuals of society and
for the purpose of promoting the welfare of working class.
Trade union movement is not confined to the premises of one nation or country but
it has widened to the international field as well. It may be desirable to mention that
besides trade unions in specific countries, there is one international organisation of
working class known as International Labor Organisation (ILO) for promoting
labor welfare. The need for recognition of trade unions by employers was felt by
the working class to ensure that appropriate modes of collective bargaining took
place and that the agreements, which were collectively reached, were mutually
observed. It was considered that recognition of trade unions was a step towards
securing reasonable levels of pay and working conditions. This in turn will be
achieved if workers stood united in representing their demands through a trade
union, which is adequately recognized.
Trade union recognition works as much in the interests of the employer as it does
in the interest of the worker. such recognized unions, must be given statutorily
exclusive rights and facilities like right of sole representation, entering into
 23

collective bargaining agreements, holding discussions and negotiations, inspection,

check-off etc; Once a union is recognized it serves as the bargaining agent for the
workers in a particular bargaining unit. Recognition of trade union is the backbone
of collective bargaining. Having a single body for negotiating terms and conditions
for workers is simpler than dealing with workers individually.

Recognition of Trade Union

Sections (28-C to 28-I)
Section 28-Recogniton by Agreement
1. Where an employer agrees to recognize Trade Union, a memorandum of
agreement by the employer and the officers of Trade Union, or their
authorized representatives may be presented to the Registrar who shall
record the memorandum in a register in the prescribed manner.
2. Such an agreement may be revoked by either party thereto on application
made to the Registrar in the prescribed manner.
3. While such an agreement is in force, the trade union have all the rights of a
recognized trade union.
Section 28-D-conditions for recognition by order of a Labour Court
A trade union shall not be entitled to recognition by order of a labour Court under
section 28-E unless it fulfills the following conditions, namely-
a. That all its ordinary members are workmen employed in the same industry
b. That it is representative of all the workmen employed by the employer in
that industry
c. That its rules do not provide for the exclusion from membership of any class
of the workmen
d. That its rules provide for the procedure for declaring a strike;
 24

e. That its rules provide that a meeting of its executive shall be held at least
once in every six months.
f. That it is a registered trade union and that it has complied with all the
provisions of this Act.
Section 28-E-Application to and grant of recognition by Labour Courts-
1. Where a registered trade union having applied for recognition to an
employer has failed to obtain recognition within a period of three months
from the date of application, it may apply in writing setting out such
particular as may be prescribed to the Labour Court for recognition by that
employer.
2. The labour Court may call for further information, for the purpose of
ascertaining whether the trade union is entitled to recognition by the
employer under this section, and if the trade union fails to supply the
required information within the time granted, the labor court may dismiss
the application.
-labour court can investigate that the trade union fulfils the conditions.
3. If the labour court is satisfied, it may direct to the employers for recognition.
28-F-Rights of recognized Trade Unions-
1. The executive of a recognized trade union shall be entitled to negotiate with
employers in respect of matters connected with the employment or non-
employment or the terms of employment or the conditions of labour of all or
any of its members and the employer shall receive and send replies to letters
sent by the executive and grant interviews to that body regarding such
matters.
2. Any dispute between the employer and the executive of a recognized trade
union as to whether a conclusion has been arrived at, or whether there has
 25

been a change in circumstances, shall be referred to the registrar whose

decision shall be final.
3. The executive of a recognized trade union shall be entitled to display notices
of the trade union in any premises where its members are employed and the
employer shall afford the executive reasonable facilities for that purpose.
Section 28-G-Withdrawal of recognition
Where the recognition of a trade union has been directed under section 28-E, the
registrar or the employer may apply in writing to the labour court for withdrawal of
the recognition on any of the following grounds, namely;
a. That the executive or the members of the trade union have committed any
unfair practice set out in section 28-J within three months prior to the date of
the application.
b. That the trade union has ceased to be representative of the workmen
On receipt of an application, the labour court shall, serve notice on trade union to
show cause why its recognition should not be withdrawn.
If it’s not satisfied then the recognition can be withdrawn
Section 28-H-Application for fresh recognition-on the expiry of not less than six
months from the date of withdrawal of recognition, if it continues to be a registered
trade union, may again apply for recognition.
Section 28-I-Recognised Trade Unions to submit prescribed returns-every trade
union recognized under section 28-E shall submit to the registrar at the prescribed
time and in the prescribed manner such returns, in addition to those referred to in
section 28 as may be prescribed.
 26

Collective bargaining and Trade Disputes

A
n individual is free to bargain for himself and safeguard his own
interest. If an individual workman seeks employment he stands in a
weaker position before his master, who having command over wealth,
stands in better position, to dictate his own terms and the individual has to accept
the offer without any reserves for he has to earn something to feed his family.
However the position becomes different if a bargain is made by a body or
association of workmen.
They can negotiate and settle their terms with the employer in a better way and
secure better wages, better terms of employment and greater security. The object
of collective bargaining is to harmonize labour relations, promote industrial peace
by creating equality of bargaining power between the labour and the capital. Any
conditions of service like, wages, hours of work, leave, gratuity, bonus, allowances
and other like privileges can all be settled by negotiation between the body of
workmen and employer.
According to International Labour organization negotiations about working
conditions and terms of employment between an employer, and employees. Thus
collective bargaining is that arrangement whereby the wages and conditions of
employment of workmen are settled through a bargain between the employer and
the workmen.
The Encyclopedia of social sciences treats collective bargaining as a process of
discussion and negotiation between two parties. The object of any labour
movement at all times is to seek an ever rising standard of living, which means not
only more money but more leisure and a richer cultural life.
There can be four ways in which terms and conditions of employment can be
determined:
1. They may be unilaterally dictated by an employer;
 27

2. They may be imposed by union;

3. They may be regulated by government;
4. They may be determined by joint negotiation between employer and workers
on their union.
In the early days of industrialization almost all industries or other establishments
such as railway, factories, mines were run by autocratic managers whose words
were law. This method, known as employer regulation was in vogue, for quite a
long time till the birth of trade unions.
The unions took some time to establish their foothold. The second method of
determining conditions of employment that is unilaterally by trade unions has not
yet arrived nor is it expected to arrive in near future.
The reason is obvious because the labourers need employment to earn their
livelihood to feed their family. The third method that is regulation by government
is possible and in most of the countries including ours it has come into existence.
Now the state has started intervening in industrial relations by enacting labour and
industrial laws governing various aspects of employment relations either in one
establishment, in an industry or throughout the country. These laws may prescribe
rates of wages, minimum wages, hours of work, health, safety and welfare measure
etc.
The last method by which representatives of labour and management negotiate or
mutually settle the terms and conditions of employment is called collective
bargaining.
This method of negotiation between elected representatives of workers and
management may not be a perfect system but has come in use and is considered as
the best method ever devised by free men.
The agreement arrived at between the employers and trade union has a regulative
effect. Large concentration of economic power in the hands of the employer due to
 28

modern technological development has placed individual in a weaker position

relating to the terms and conditions of employment or settlement of disputes is
concerned. But a trade cannot represent a workman who is not its member.
Forms of Collective Bargaining
The process of collective agreements normally takes one or the other of the forms,
namely, negotiation, mediation and arbitration, voluntary or compulsory.
Negotiation is the process of settling the differences by face to face round table
talks between the representatives of the employees and employers. In case of
failure of the negotiating machinery to resolve the difference by mutual discussions
and understanding, a third party intervention to secure settlement of labour
disputes by way of mediation is often resorted to. The mediator functions not as a
judge, but assists the parties in dispute to reach an agreement by persuading them
to resume or continue their bargaining efforts. Arbitration is an act of settling
labour disputes through the medium of a neutral third party. The parties to a
dispute may either agree amongst themselves to submit for settlement by a third
person and abide by his award or a dispute might be submitted to arbitrator under
the provisions of a statute. In the former case it is voluntary arbitration, in the latter
it would be compulsory arbitration. In case of voluntary arbitration the selection of
arbitrator entirely rests with the parties to the dispute. The award is binding on the
parties and is also enforceable in the courts.
Essential conditions for collective bargaining
The essential conditions for success of collective bargaining in any country are the
following:
1. Right to organize-the success of collective bargaining in any country
depends upon the right of the workers to organize themselves and bargain.
This means that the workers must have the Right to Freedom of Association
and Protection of Right to Organize Conventions, 1948 and Right to
 29

Organize and Collective Bargaining, 1949 was a condition sine qua non for
collective bargaining. Workers and employers organization should be free
and strong and must also be relatively equal in strength.
If the above two freedoms are not enjoyed by workers effectively or they are
restricted then the success of collective bargaining becomes doubtful.
2. Stable and strong trade unions-the second essential and important
condition is that the trade unions must be stable and strong. The more the
organizations or unions of workers are strong the more effective role they
will be able to play at the bargaining table. The more industrialized a
country is, the more strong will be the trade union. In developing countries
also the strength of trade unions widely varies.
3. Recognition of trade unions-For successful collective bargaining
recognition of trade union is most essential. Unless the trade union is
recognized by employers, the union will face lot of problems before going to
negotiating table with the employer. If the employer refuses to recognize the
trade union of workers, the collective bargaining will almost be impossible.
4. Attitude of employers and trade unions-in addition to the above factors on
which the success of collective bargaining depends it also greatly depends
on the attitude of the parties that is the trade union and the employer. If they
are rigid and non-compromising it may create problem for collective
bargaining. On the contrary if parties are compromising and are ready to
give and take, they may achieve at least something by collective bargaining.
Statutory and non-statutory bargaining-Collective bargaining in some countries
is regulated by legislation while in some others it is voluntary depending on the
initiative of the parties. Thus it is of two kinds. One where it is regulated by statute
that is called statutory and it is non-statutory where it depends on the initiative of
parties.
 30

In case of non-statutory collective bargaining the parties are free to make their own
arrangement for collective bargaining. They are not required to comply with
government regulations. They are free to decide the period for which the
agreement shall remain in operation. In India parties were required to recognize a
union under the Code of Discipline in Industry. But now the Indian Trade Union
Act provides for registration and recognition of Trade Unions.
Purposes of collective bargaining-Collective bargaining serves two purposes,
namely
1. Collective bargaining as a means of regulating wages and conditions of
service-in the beginning collective bargaining was used as a method of
regulating wages and some conditions of employment but with the
development of trade unions gradually it covered matters relating to hours of
work, bonus, cost of living allowance, annual leave, better working
conditions, etc.
Now in addition to wages and hours of work it has become a forum for
discussing matters such as job security, vocational training, retirement
benefits and unemployment insurance, improvement of productivity and
criteria and procedure for dismissals, better working environment,
elimination of health hazards and lessening of accident risks and many such
other problems that may arise with the changing society.
2. As a means of regulating labour management relations-this lessens the
chances of strikes and lock-outs and creates an atmosphere of peace and
mutual understanding of problems and the readiness to work and live
peacefully. The code of Discipline in Industry in our own country shows
determination of both the labour force and the management to settle their
problems mutually and amicably. This is all due to the growing interest all
over the world in participation of decision making process. Thus
 31

participation of both the labour and management in decision making shows

that those concerned shall be informed and consulted. In this process they
also endorse the decision taken.
Collective bargaining and settlements
A settlement arrived at by agreement between the employer and workmen
otherwise than in the course of conciliation proceedings shall be binding on the
parties to the agreement. A settlement comes into operation on such date and is
binding for such period as agreed upon by the parties.
But when parties do arrive at a settlement, the law gives to it a greater sanctity.
The unions and the employers, while making a collective bargaining must be
sufficiently watchful that the agreement arrived at should be in conformity not only
with the provisions of a general law touching upon the subject of dispute, but also
be in conformity with the provisions of the industrial law having a bearing with the
subject matter of dispute. It has also to be borne in mind while making an
agreement that the interest of the workers who are not the members of the trade
union are also protected and the workers are not discriminated against.